The Condemnor’s Burden to Demonstrate “But For” To Apply The Project Influence Rule

The Third Department got it right in Matter of State of New York v KKS Properties, LLC, 119 AD3d 1033, (July 3, 2014).  KKS Properties, LLC is one of those 1033decisions that make you cringe.  An award on an appropriation claim in the Court of Claims which is lower than the advance payment resulting in a judgment in favor of the State is an outrageous outcome for a compulsory taking of one’s property.  We have often advocated that there must be a minimum of “just compensation.”  A condemnor is required… read more

Posted in Condemnation, Project Influence Rule, Severance Damages
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A Funny Thing Happened on the Way to the Beach.

A long simmering dispute regarding the public’s use of the beach at Napeague, East Hampton culminated in a trial at Riverhead.  The homeowners landward of the beach brought suit against the Town of East Hampton and the Trustees of the Freeholders and Commonalty of East Hampton claiming ownership of the beach. Following a multi-day trial, the Court ruled in favor of the Town and Trustees and dismissed the action.  On appeal, the Appellate Division, Second Department reversed. 191 AD3d 77 (2021). But the proceedings are far from over since the… read more

Posted in Adverse Possession, Public Trust, Title to Beach
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Special Benefits – Special Nonsense

In a very comprehensive decision, the Honorable John J. Leo discussed, among many legal issues, special benefits.  The decision, Freudenberger v County of Suffolk, Index No. 606055/16 (Suff. Co. April 5, 2021), the Court awarded $172,302 in a taking by the County on Fire Island for the reconstruction of Fire Island’s barrier beach and dune network.  The intent of the project was to protect the sand dunes by taking easements to construct flood hazard risk reduction measures.  The County’s total appraised damages for the 2,558 square feet of property was… read more

Posted in Condemnation, Fire Island, General Benefits, Special Benefits
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An 800-Megawatt Surprise – Destroying a Community

One of the nice things about writing a blog is that your readers send you ideas for your next article.  This one is a doozey. There is an 800-megawatt hydroelectric project for New York which is proposed by Premium Energy Holdings of California.  The proposal calls for the Ashokan Reservoir water and its existing dam to be used as a lower reservoir in a pumped storage power plant facility. The project’s preliminary permit application is before the Federal Energy Regulatory Commission. The reservoir proposal has been called “devastating.”  Local officials,… read more

Posted in Condemnation, FERC, Hydroelectric Power Plant, Reservoir
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Valuing Real Estate During a Pandemic

The Granular Approach Covid-19 has significantly impacted real estate valuations.  For example, under the comparable sales approach to valuation, valuators look at sales prices of similar properties in recent transactions, making adjustments for differences between those properties and the subject property.  As stated by Lisa Loychik of Cohen & Co. in a paper dated August 20, 2020, “It’s debatable whether pre-Covid-19 sales can be considered comparable with post-pandemic sales, though.  Valuators are looking beyond comparable sales and considering individual circumstances on a more granular level.  This approach acknowledges that generalities… read more

Posted in Comparable Sales, Covid-19, Valuation
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Wind Power Transmission Lines: Up in The Air

Stopping the construction of wind generated energy is a growing trend in America. The Missouri legislature is considering a law that would outlaw utility companies taking land through eminent domain.  The Missouri House passed a bill 123-33 last week that would eliminate condemnation for a utility line.  The bill was specifically designed to block a project, “The Grain Belt Express.”  The project is a private venture that would take wind generated energy from Kansas and transmit it across Missouri.  The project will transport up to 4,000 megawatts of energy from… read more

Posted in Eminent Domain, Utilities, Wind Generated Energy
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The “Big Beautiful Wall” and Its Ugly Damages

President Biden ordered a freeze on further wall construction and acquisitions until his administration can sort things out.  The Trump administration rushed through its fence wall building program by utilizing a section of the Real ID Act of 2005 that empowers the head of the Department of Homeland Security “to waive legal requirements” the Secretary “determines necessary to ensure expeditious construction of the barriers and roads” at the border.  That allowed the former administration to suspend 84 separate laws and regulations and proceed without considering the damage it was causing… read more

Posted in Border Wall, Consequential Damages, Direct Damages, Partial Takings
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Condemning a Golf Club? Not So Fast – It’s Worth More Than You Think.

When a town condemns a country club to continue its use as a golf course, it may have bitten off more than the taxpayers can chew. The law in New York and elsewhere in our country is that the Constitution requires the payment of just compensation, It is the general rule that “just compensation” is the fair market value of the property at the date of the taking, Matter of Board of Water Supply of City of New York, 277 NY 452 (1938); County of Erie v Fridenberg, 221 NY… read more

Posted in Country Club, Golf Course, Highest and Best Use
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THE PUBLIC’S RIGHT TO SPEAK AT A PUBLIC HEARING

Before any property is condemned in New York, Article 2 of the Eminent Domain Procedure Law must be complied with.  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 nonstate 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… read more

Posted in EDPL 201, EDPL 204(B), Public Hearing
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What Happens to Title of Real Estate Upon Condemnation?

Upon the vesting of title in a condemnation proceeding, all lien interests in the subject property by virtue of mortgages, unpaid taxes, or unsatisfied judgments are extinguished.  However, substituted in their place are equitable liens against the condemnation award to the extent of each lien and interest as of the date title vested.  County of Rockland v Kohl Industrial Park Co., 172 AD2d 607 (2d Dept 1991). There is, however, one lien which has a super priority.  The attorney who created the fund by litigation the condemnation claim has not… read more

Posted in Attorney's Charging Lien, Condemnation, Equitable Ownership, Title
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