CALIFORNIA’S BULLET TRAIN IS A DUD. WHAT HAPPENS TO THE PROPERTY CONDEMNED AND NOT USED?

          The California High-Speed Rail Project was authorized by the State Legislature and signed by Governor Arnold Schwarzenegger on August 26, 2008.  The bill was submitted to California voters and approved.           The first phase of the Project was to link San Francisco with Los Angeles and Anaheim.  Up tot 24 stations were authorized.  Phase 2 was to extend north from the Central Valley to Sacramento and east from Los Angeles through Inland Empire and then south to San Diego.  The total system length would have been approximately 800 miles…. read more

Posted in Abandonment Of Condemnation, California Bullet Train, Uncategorized
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IS MEDICAL TREATMENT FOR A PRE-EXISTING CONDITION A PROPERTY RIGHT?

The subject for this blog was suggested by Dr. Sumeet Mitter, my excellent cardiologist.  This blog is dedicated to him and all the incredible medical staff at Mt. Sinai Hospital.  Having just had a heart transplant, it was a subject that I could warm to.           A pre-existing medical condition is generally defined as “a medical condition that occurred before a program of health benefits went into effect.”  According to the Kaiser Foundation, more than a quarter of adults below 65 (approximately) had pre-existing conditions in 2016.           Under current… read more

Posted in Goldberg v Kelly, Pre-Existing Medical Condition, Property Rights, Texas v United States
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IT’S TIME TO PUT AN END TO THE BIAS IN FAVOR OF CONDEMNORS

We recently read a decision from the Court of Claims where the following statement is found “… all considered with the understanding that the burden of proof is establishing an entitlement to substantial compensation rests with claimant (see Andrews v State of New York, 137 AD2d 952, 953 (3d Dept).” Cardinal Development Properties, Ltd. v The State of New York, Claim No. 120333, Decision Filed December 18, 2018, J. Hudson. Why would a Court of Claims Judge believe that this is true in a de jure appropriation? In other words,… read more

Posted in Burden of Proof, Condemnation, Inverse Condemnation
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THINKING ABOUT CHALLENGING A CONDEMNATION IN NEW YORK? – GOOD LUCK!

Authorizing and Challenging the Condemnation Article 2 of New York’s Eminent Domain Procedure Law sets forth the prescribed way that property is to be acquired by eminent domain.  EDPL Section 201 provides that there must be public hearings for both state and non-state takings at a location reasonably proximate to the property. It is essential that notice be given by publication and by personal service or certified mail, return receipt requested, to each assessment record billing owner or his or her attorney of record, as required by Section 202. The… read more

Posted in Condemnation
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WE DON’T NEED NO STINKING HUMAN APPRAISER – WE WILL USE A BOT

The November 30, 2018 Wall Street Journal has an article, “Home Appraisals Go High-Tech.”  It seems that the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corp. and The Federal Reserve have proposed loosening real estate appraisal rules so that a majority of homes can be bought and sold without being valued by a licensed appraiser.  According to the article, the plan would increase the value of homes that can be sold without an appraiser visiting the property from $250,000 to $400,000.  This does not sound like… read more

Posted in Appraisal, Appraisers, FDIC
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PARDON ME, IS THAT YOUR DINOSAUR?

Our friend Robert H. Thomas brought our attention into an interesting case in his excellent blog, inversecondemnation.com.  The case, Murray v BEJ Minerals, LLC, was handed down by the Ninth Circuit Court of Appeals on November 6, 2018. The case was brought by plaintiffs who were owners of a Montana ranch.  They sought a declaratory judgment that dinosaur fossils found on the ranch belong to them as owners of the surface estate. Plaintiffs took title to the ranch from the Seversons prior to the discovery of the fossils.  The previous… read more

Posted in De Facto Appropriation, Fossils, Mineral Rights
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PUT THAT IN YOUR PIPE AND SMOKE IT! MATTER OF NATIONAL FUEL GAS SUPPLY v SCHUECKLER

The Fourth Department of New York’s Appellate Division handed down the decision in Matter of National Fuel Gas Supply Corp. v Schueckler, ___ AD3d ____, 2018 NY SLIP OP 07550 (Nov. 9, 2018).  The appeal involved the granting of a petition for the acquisition of easements for an interstate gas pipeline. Now gas pipelines have gotten pretty used to obtaining what they need.  But not in New York.  The State of New York has blocked the entire pipeline project by denying the necessary environmental permits.  Notwithstanding the barrier posed by… read more

Posted in EDPL Article 2, FERC Certificate, Natural Gas Act, Pipeline Easements
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CAN ONE GOVERNMENT CONDEMN ANOTHER GOVERNMENT’S PROPERTY?

Generally, a body with the power of eminent domain cannot condemn the property of a higher sovereign.  But the key inquiry seems to be, is the current use a public use, since there is a doctrine of prior public use which holds that a condemnor may not condemn property already being used for a public purpose if the proposed use “will either destroy the existing (public) use or interfere with it to such an extent as is tantamount to destruction.”  Okanogan County PUD v State, 182 Wn2d 519, 538-539 (2015). … read more

Posted in Condemnation of Government Property, Prior Public Use
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CAN A CLAIMANT TESTIFY AS TO THE VALUE OF PROPERTY IN NEW YORK? WHY NOT?

We became intrigued with this question after reading the Amici Curiae brief of Owner’s Counsel of America written by renowned legal scholar Robert H. Thomas in an appeal pending in the United States Court of Appeals for the 11th Circuit, Sabal Trial Transmission, LLC v 3.921 Acres of Land in Lake County, Florida.  I am the New York State representative of Owner’s Counsel of America. The brief makes two main points.  First, the Fifth Amendment requires that an owner recover the “full and perfect equivalent for the property taken.”  And… read more

Posted in Competency of Witness, Owner's Testimony, Valuation
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MORE KNICK ON KNICK V. TOWNSHIP OF SCOTT

We wrote about this case in our September 21, 2018 blog.  The Township of Scott, Pennsylvania passed an ordinance affecting private properties determined to be or contain cemeteries. In relevant part, the ordinance required that “all cemeteries within the Township . . . be kept open and accessible to the general public during daylight hours” and that no owner could unreasonably restrict nor charge any fee to access the cemetery (the “public-access provision”).  Additionally, the ordinance permitted a Township office to enter any property within the Township to determine whether… read more

Posted in De Jure Condemnation, Inverse Condemnation, Knick v Town of Scott
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