Creative Approaches to Solving Difficult Appraisal Problems

          We start any evaluation of a parcel which has been taken by the exercise of eminent domain by the application of the overriding principal of the concept of highest and best use.           The concept of highest and best use is well founded in appraisal practice.  Regardless of whether property has been condemned, in valuing any parcel of real estate an appraiser must make a highest and best use of the land analysis as though the property were vacant and as though it were improved.  This is an essential… read more

Posted in Highest and Best Use, Uncategorized, Unusual Land
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MONKEY BUSINESS WITH THE ADVANCE PAYMENT

          New York’s Eminent Domain Procedure Law (EDPL) provides that a condemnor must make an advance payment to a former owner in the amount of its highest approved appraisal.  (EDPL Sec. 304).           The statute contemplated payment of the advance payment to the owner except in three circumstances: (1) Where there is a potential conflict of title or dispute as to who is entitled to receive the payment; (2) where more than 90 days have passed following vesting of title in the condemnor and an agreement has not been reached;… read more

Posted in Advance Payment Agreement, Advance Payments, Distribution Proceeding, Uncategorized
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PIPELINES RAISE CRITICAL AND WELL-FOUNDED CONCERNS.

          The Supreme Court has agreed to take up a dispute over a natural gas pipeline’s crossing of the Appalachian Trail.  Developers of the Atlantic Coast Pipeline fought a 4th U.S. Circuit Court of Appeals ruling that found that the Forest Service lacked the ability to authorize the project to run under the trial.  The joint owners, Dominion Energy, Duke Energy and Southern Company, stated, “We are confident in our arguments, and those of the Solicitor General, and are hopeful the Supreme Court will overturn the Fourth Circuit’s decision and… read more

Posted in Appalachian Trail, Keystone Pipeline, Pipelines, Uncategorized
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DAMAGES FOR FLOODING ARE ALL WET IN A CONDEMNATION PROCEEDING.

          The First Department handed down an interesting decision distinguishing an eminent domain claim from a tort claim.  In 82 Willis, LLC v The City of New York, ____ AD3d ____ [1st Dept 2019], 2019 NY Slip Op 08162, the Claimant filed a claim pursuant to EDPL Sec. 503 in the condemnation proceeding asserting a taking for an easement over its lot.  When it submitted its appraisal, it sought damages for flooding after rainfall.  The City moved to strike the appraisal on the basis that the flooding damages do not… read more

Posted in Flooding, Inverse Condemnation, Tort Claim for Flooding, Uncategorized
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Damage resulting from a police action is not a taking

A takings claim was recently denied by the United States Court of Appeals, Tenth Circuit in Lech v Jackson, 2019 U.S. App. LEXIS 32393 [10th Cir Oct. 29, 2019, No. 18-1051]. The claim was made following the destruction of a house resulting from a high-stakes police action to apprehend a criminal suspect who attempted to evade capture by hiding out in a home. The court wrote that where the state acts pursuant to its police power, its actions do not constitute a taking for the purpose of the Taking Clause… read more

Posted in Takings Clause
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OH MY, THE KEYSTONE PIPELINE IS LEAKING

          You remember the Keystone Pipeline.  President Trump signed an Executive Order on January 24, 2017 reviving the Keystone XL and Dakota Access Pipeline projects.  Former President Barak Obama rejected the Keystone 1,179-mile pipeline in 2015.           When he signed the Order, Mr. Trump recited that the pipeline would bring 28,000 construction jobs.  But according to the New York Times, “studies showed that the pipeline would not have a momentous impact on jobs.”  New York Times, January 24, 2017.  The President also indicated that he would renegotiate the terms with… read more

Posted in Keystone Pipeline, Leaking Pipelines, Uncategorized
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SUPREME COURT DENIES REVIEW OF “QUICK TAKE” PIPELINE TAKING

          On October 1, 2019, the United States Supreme Court denied certiorari to review a landowners’ appeal from the 4th Circuit Court of Appeals in Givens v Mountain Valley Pipeline.  The issue is the “quick take” process that grants the pipeline immediate access to property when a Federal Pipeline Certificate is issued.  The 303-mile pipeline would transmit Appalachian shale gas to Mid-Atlantic markets.  The landowners are then relegated to a trial for just compensation.            The Supreme Court decision in June in Knick v Township of Scott (see Bye Bye… read more

Posted in Pipelines, Quick Take, Uncategorized
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ARE PIPELINES RUNNING OUT OF GAS?

          In an interesting article written by Phil McKenna in Inside Climate News, Mr. McKenna reports that recent federal court rulings could give states more authority to oppose natural gas pipeline projects.  As Trump tries to clear the way for more fossil fuel pipeline construction, a diverse coalition of environmental advocates and landowners are gaining traction in their efforts to fight new pipeline projects by focusing on property rights.           The article argues that a pipeline’s use for eminent domain is inappropriate.  As we know, eminent domain is an inherent… read more

Posted in Natural Gas Act, Pipelines, Uncategorized
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YOUR EXPERT IS COMMITTING PERJURY, WHAT SHOULD YOU DO?

I was recently cross-examining an expert witness who had never testified before. I asked him whether he had made any prior reports to the one in evidence. He hesitated for a long time. His body language indicated evasiveness. Finally, he said, “I don’t think so.” I tried to pin him down and asked him again if he ever submitted any other report, draft report, or written or oral opinion to counsel. Again, he said “no.” But he lied under oath. The lie was made evident when cross examining another witness… read more

Posted in Attorneys' Ethics, Perjury, Uncategorized
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PROVING FAIR MARKET VALUE BY THE MARKET DATA APPROACH. ARE YOUR COMPARABLES REALLY COMPARABLE?

An appraisal presents a pure factual presentation of data and information utilized by an expert to conclude to an opinion of value.  In New York State, an appraisal is required to be exchanged and filed pursuant to Court Rule.  22 NYCRR Sec. 202.61.  See Miriam Osburn Memorial Home Assoc. v Assessor of Rye, 2004 N.Y. Slip. Op. 50793 (U) (West. Sup. Ct. 2004). The Appraisal Rule allows the parties to prepare for trial with knowledge of each other’s valuations and the foundations and justifications thereof.  Parisi v State, 62 Misc2d 378, 382… read more

Posted in Appraisal Rule, Comparable Sales, Market Data Approach, Uncategorized
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