» Blog http://www.condemnation-law.com Nationwide eminent domain law firm that exclusively represents property owners Mon, 16 Feb 2015 16:25:19 +0000 en-US hourly 1 Eminent Domain Impacting Property Owners http://www.condemnation-law.com/articles-eminent-domain/eminent-domain-impacting-property-owners/ http://www.condemnation-law.com/articles-eminent-domain/eminent-domain-impacting-property-owners/#comments Mon, 16 Feb 2015 16:24:40 +0000 http://www.condemnation-law.com/?p=8150 Property Owners Impacted by Eminent Domain in Many Different Ways Eminent domain is the right of a government or its agent to expropriate private property for public use, with payment of compensation. Property owners all of over the country are impacted in different ways by eminent domain. They may be impacted by a road projects, Continue Reading

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Property Owners Impacted by Eminent Domain in Many Different Ways

Eminent Domain Impacting Property OwnersEminent domain is the right of a government or its agent to expropriate private property for public use, with payment of compensation. Property owners all of over the country are impacted in different ways by eminent domain. They may be impacted by a road projects, airport expansions, utility easements among other smaller types of eminent domain takes. In some cases, property owners are indirectly affected, which in most cases would be inverse condemnation.

If property owners oppose a project, they will band together and hire an attorney to stop a project or the Government from using Eminent Domain and allowing a project from moving forward. There can be some success depending on the situation and project, but in most cases it will be a tough fight. Road projects are the most difficult to fight as they are a “public use”(Link to our page) that can’t be argued.

More recently, the Government has been using eminent domain for sidewalks, bike/walking trails and small parks. These projects vary on the aspects of “public use” so they are more difficult to push forward in a community, assuming eminent domain is needed to acquire property.

If you would like to discuss any of this in more detail, please give us a call at 866-339-7242 for a no obligation consultation.

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The Cost of an Eminent Domain Attorney http://www.condemnation-law.com/articles-eminent-domain/cost-of-an-eminent-domain-attorney/ http://www.condemnation-law.com/articles-eminent-domain/cost-of-an-eminent-domain-attorney/#comments Mon, 26 Jan 2015 16:46:26 +0000 http://www.condemnation-law.com/?p=8114 Are Eminent Domain Attorneys Expensive? The most blatant eminent domain abuse occurs when the condemning authority makes “low ball” offers. This scenario invariably requires the property owner to hire an attorney to obtain just compensation. This problem is particularly acute for property owners with “small claims”. These are claims where just compensation may be significantly Continue Reading

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Are Eminent Domain Attorneys Expensive?

The most blatant eminent domain abuse occurs when the condemning authority makes “low ball” offers. This scenario invariably requires the property owner to hire an attorney to obtain just compensation. This problem is particularly acute for property owners with “small claims”. These are claims where just compensation may be significantly more than the offer (100% or more), but the dollar amount is relatively small.

Cost of Eminent Domain Attorney

An owner can only afford to hire an attorney in this situation on a contingent fee basis, but many attorneys won’t take such a case or will only argue to go so far as negotiating a settlement. The condemning authority knows this and has little incentive to move off the “low ball” offer. The motivation to negotiate honestly, and even avoid low ball offers to begin with, increases significantly if the condemning authority can be liable for the attorney’s fees incurred by the property owner.

The following states have attorney fee recovery statutes where certain thresholds are met:
Oregon, Washington, California, Delaware, Idaho, Montana, Colorado, Oklahoma, Iowa, Minnesota, North Dakota, South Dakota, Wisconsin, Michigan, Indiana, New York, South Carolina, Florida, Arkansas, Louisiana, Wyoming, and Alaska.

These statutes allow property owners to recover 100% of their claim by forcing the government to pay their attorney’s fees and in some states, their costs. Even if your state does not require the government to pay costs and fees, you can still hire an attorney on a contingent fee basis. With a contingent fee structure, the attorney only gets paid if they are successful at obtaining additional just compensation. In this situation, their fee is typically one-third of the recovery. Learn more about our fees.

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The Kelo Decision and Blight http://www.condemnation-law.com/eminent-domain-legislation/the-kelo-decision-and-blight/ http://www.condemnation-law.com/eminent-domain-legislation/the-kelo-decision-and-blight/#comments Wed, 21 Jan 2015 22:02:36 +0000 http://www.condemnation-law.com/?p=8141 Following the unfavorable Kelo decision in 2005,  governmental entities started abusing their power to exercise eminent domain and attempted to deem lower grade neighborhoods as blighted in order to acquire the property and have the area redeveloped in order to increase their tax base. Even though the area may not be technically blighted, governments have Continue Reading

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Kelo Decision and BlightFollowing the unfavorable Kelo decision in 2005,  governmental entities started abusing their power to exercise eminent domain and attempted to deem lower grade neighborhoods as blighted in order to acquire the property and have the area redeveloped in order to increase their tax base. Even though the area may not be technically blighted, governments have been objectively calling it that to settle the public use definition.  In a few states like New York, the definition of blight is broad and lacks clarity making it easier for governments to misuse this designation in order to exercise their eminent domain authority.  As a result, this area of eminent domain law is still very unsettled and interpreted differently by different states.

This whole concept promulgated into the Kelo v. City of New London decision, where the City of New London Connecticut redeveloped an area without even relying on the blight designation.  Their intention was to create a more valuable tax base by handing off to a developer for a new Pfizer headquarters, so they proceeded to take property under the power of eminent domain for the sole reason of creating a more valuable tax base.   They argued that the creation of a more valuable tax base was in fact a sufficient public use to justify taking property away from one private property owner and giving it to another.  As you can imagine, there was a loud human cry across the country about what happened.  The Supreme Court of Connecticut upheld the actions that the City of New London took and the case was appealed to the U.S. Supreme Court.  There in a very contentious five to four split decision, the U.S. Supreme Court stated that although they didn’t agree that economic development was the proper public use to be used anywhere, the federal government through the federal constitution would not stand in the way of a taking for economic redevelopment for the sole purpose of increasing tax benefit purposes as a proper public use.

This decision ultimately granted each state the power for crafting language in their statutes and constitutions specific to public use, the blight definition and whether or not eminent domain could be used for the sole purpose of economic gain.  As you can probably imagine because of the tremendous outrage that was created throughout the country, 43 states responded by enacting “post-Kelo” legislative reform to help curb eminent domain abuse.  In a few states, blight was statutorily removed from the public use category.

There is a lot of litigation in this area, and I expect that until truly objective blight standards are established on a state by state basis, this will continue to be an area that is going to see a lot of litigation in the court system.

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Update on the Opportunity Corridor in Cleveland http://www.condemnation-law.com/firm-projects/ohio-projects/update-opportunity-corridor-in-cleveland/ http://www.condemnation-law.com/firm-projects/ohio-projects/update-opportunity-corridor-in-cleveland/#comments Mon, 19 Jan 2015 21:04:16 +0000 http://www.condemnation-law.com/?p=8130 The Opportunity Corridor project in Cleveland is moving right along in the acquisition phase. Back in May, the 3.2 mile boulevard gained final environment approval from the Federal Highway Administration clearing the way for the Ohio Department of Transportation to move forward with the $331 Million dollar project that links Interstate 490 and University Circle. Continue Reading

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Opportunity Corridor Project ClevelandThe Opportunity Corridor project in Cleveland is moving right along in the acquisition phase. Back in May, the 3.2 mile boulevard gained final environment approval from the Federal Highway Administration clearing the way for the Ohio Department of Transportation to move forward with the $331 Million dollar project that links Interstate 490 and University Circle.

ODOT has been sending appraisers, offers out to property owners over the past several months. There are around 64 homes, 25 businesses and a Church that are impacted by the project.

The Opportunity Corridor project has been divided into three construction sections:
Section 1 – East 105th Street from Quebec Avenue to north of Chester Avenue; Construction to Winter, 2015.
Section 2 – New roadway from East 93rd St. to Quebec Ave. Design-Build; Construction to begin Summer, 2015.
Section 3 – New roadway from I-490/East 55th Street to East 93rd Street; Construction to begin in 2017 (TBD).

There are several businesses that will be severely impacted by the project. We have reviewed several of the offers/appraisals for a few of these owners at no cost to the property owner. If you are a property owner impacted by this project and are interested in a free evaluation, give us a call at 866-339-7242 today.

Check out the project page for more information.

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Eminent Domain: Drainage Issues http://www.condemnation-law.com/articles/eminent-domain-drainage-issues/ http://www.condemnation-law.com/articles/eminent-domain-drainage-issues/#comments Mon, 19 Jan 2015 19:28:28 +0000 http://www.condemnation-law.com/?p=8123 Drainage issues in eminent domain Many farmers have experienced drainage issues for various different reasons. When the Government needs land for a road project, they may impact drainage which should be compensated by the Government as a severance damage. There can be many different reasons a farmer is not receiving enough compensation from the Government Continue Reading

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Drainage issues in eminent domain

Many farmers have experienced drainage issues for various different reasons. When the Government needs land for a road project, they may impact drainage which should be compensated by the Government as a severance damage.

There can be many different reasons a farmer is not receiving enough compensation from the Government for their land, drainage is one we see regularly. Sometimes when the government takes a farmer’s property they are either ignorant or just do not care how the project impacts the drainage of water on a farm. As any farmer understands, an improperly drained field can reduce yield or even prevent farming a substantial portion of your property. Damage to drain tiles can cause fields to flood or cause silt build-up to ruin the entire system. Destroying berms or terracing can also impact drainage and the amount of water in fields. Also, mitigation ponds can be too shallow or the culverts do not operate properly. When an impervious surface adds more water to your farm than it had before the project, controls must be in place to protect your farm. These drainage issues are compensable, but you need attorneys that have experience in fighting for farmers and their drainage issues.

Each road project can impact specific drainage issues that pose separate challenges for a farmer. This can continue even after the road project is built, so hiring an attorney right away to determine “just” compensation is important. Eminent domain attorneys should review your offer and appraisal at no cost to help determine the next step. Feel free to contact us at 866-339-7242 for a free consultation.

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Do I Need an Eminent Domain Attorney? http://www.condemnation-law.com/articles-eminent-domain/do-i-need-an-eminent-domain-attorney/ http://www.condemnation-law.com/articles-eminent-domain/do-i-need-an-eminent-domain-attorney/#comments Wed, 14 Jan 2015 16:40:17 +0000 http://www.condemnation-law.com/?p=8111 Why hire an Eminent Domain Attorney Now Eminent domain is an unwanted government intrusion into your life that will force you to make decisions about your property and your rights. Do you sell your property outright to the government? Do you proceed with condemnation? Do you hire an attorney? You may ask yourself: Do I Continue Reading

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Why hire an Eminent Domain Attorney Now

Eminent domain is an unwanted government intrusion into your life that will force you to make decisions about your property and your rights. Do you sell your property outright to the government? Do you proceed with condemnation? Do you hire an attorney?

Eminent Domain Attorney

You may ask yourself: Do I need an eminent domain attorney? Well that depends upon your case. If you have an inverse condemnation case, or if you’re challenging the government’s right to take, then yes, you need an attorney. If the government gives you a ‘low ball’ offer and you want to pursue additional compensation, then you’ll need an eminent domain attorney to guide your through the eminent domain process and help you properly interface with the condemning authority. You will also need assistance with determining the size of your claim, identifying the necessary experts, negotiating your case, and taking your case to trial if negotiations cannot be reached.

Don’t be surprised if you’re unable to quantify or assess your damages; no one expects you to be an expert on land valuation in eminent domain cases. In fact, the government is counting on this.

To determine if you have a case, you need to consult with an eminent domain lawyer who can identify damages that lead to additional just compensation. If you consult with an attorney who doesn’t have this experience, they may overlook damages that could result in a larger recovery. Because of the highly specialized nature of eminent domain law, very few attorneys can claim expertise in this area. If you’re going to consult with and hire an attorney, make sure you work with a lawyer who only represents property owners in eminent domain cases.

Most eminent domain attorneys conduct a free case evaluation prior to recommending representation. Armed with this information, you decide whether it’s worthwhile to hire an attorney and pursue your claim. Continue reading to learn more about the costs and fees incurred when pursuing a claim.

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How Large is my Eminent Domain Claim? http://www.condemnation-law.com/articles-eminent-domain/how-large-is-my-eminent-domain-claim/ http://www.condemnation-law.com/articles-eminent-domain/how-large-is-my-eminent-domain-claim/#comments Sun, 11 Jan 2015 16:20:54 +0000 http://www.condemnation-law.com/?p=8106 Eminent Domain Claims Whether you sell your property to the government before eminent domain formally begins or let them take it by eminent domain, the law requires that the government pay you just compensation for your property. DO NOT ACCEPT LESS. You should know that just compensation often involves a wide range of issues which Continue Reading

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Eminent Domain Claims

Whether you sell your property to the government before eminent domain formally begins or let them take it by eminent domain, the law requires that the government pay you just compensation for your property. DO NOT ACCEPT LESS. You should know that just compensation often involves a wide range of issues which government appraisers may neglect to consider, such as highest and best use, or damages to your remainder parcel.

Eminent Domain Claim

When determining the size of your claim, we review the government’s appraisal to determine if the direct and indirect (severance) damages were identified and valued accurately. If they failed to consider damages that lead to a higher amount of just compensation, we’ll identify and quantify these damages to determine the size of the claim.

We review appraisals from property owners around the country on an ongoing basis. Our skill in damage claim analysis allows us to quickly assess the strengths and weaknesses in appraisal reports and provide a thorough case analysis to property owners.

Generally, we apply several techniques when determining the value of your claim. We determine your property’s highest and best use, even if that use is different than its current use. We then determine the value of your total parcel before the taking and the value of your parcel after the taking. The difference in value usually represents the amount of money you’re entitled to receive. In determining after value, we take into consideration access changes, non conforming use, current zoning and development restrictions. We also consider loss of parking, relocation, changes in highest and best use, etc. Read more about eminent domain damages, severance damages and partial takings.

Frequently an owner will only receive full compensation by allowing condemnation to occur. In condemnation an owner can show that the rules for highest and best use will produce a higher price than the amount offered by the government. In many states an owner’s attorney fees can also be paid by the government. Continue reading to learn more about attorney fee recovery in your state. If you’re instincts tell you that your offer is too low, it probably is. DO NOT BE PRESSURED TO TAKE A LESSER AMOUNT BY THE THREAT OF EMINENT DOMAIN.

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The Eminent Domain Process and What to Expect http://www.condemnation-law.com/articles/the-eminent-domain-process-and-what-to-expect/ http://www.condemnation-law.com/articles/the-eminent-domain-process-and-what-to-expect/#comments Thu, 08 Jan 2015 15:41:13 +0000 http://www.condemnation-law.com/?p=8098 The Eminent Domain Process When the government initiates the acquisition process, it will attempt to negotiate the purchase of your property just like any buyer might. If you and the government cannot agree on a price, the government can proceed with eminent domain. Keep in mind that the government is like any buyer, it will Continue Reading

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The Eminent Domain Process

When the government initiates the acquisition process, it will attempt to negotiate the purchase of your property just like any buyer might. If you and the government cannot agree on a price, the government can proceed with eminent domain. Keep in mind that the government is like any buyer, it will want to buy your property as cheaply as it can.

The Eminent Domain Process and What to Expect

When the government makes you an offer, it will tell you that it represents fair market value. It may even show you an appraisal. But be aware, appraisals can vary, and the governments may be a low one. If you reject the government’s offer, it still has to pay you that money. This does not jeopardize your right to get more money in the eminent domain hearing.

Eminent domain definition formally begins when the government starts a lawsuit to take your property. These lawsuits do not affect your credit rating or allege that you have done anything wrong. DO NOT BE INTIMIDATED BY A THREAT OF EMINENT DOMAIN. Once the government initiates eminent domain, you will need to retain an eminent domain lawyer to help you obtain just compensation. Most lawyers work on a contingent fee basis, where the lawyer takes one-third of the additional money they recover for you.

In the Eminent Domain Process, property owners are usually responsible for costs, with the primary cost being the expert(s) used to determine the value of the claim, such as an appraiser. In some states, your attorney’s fees and costs are paid for by the government if you are successful at pursuing a claim.

Property owners who are forced to relocate their home or business are also entitled to relocation benefits. Relocation is an administrative process established by the condemning authority that varies widely from city, county and state. Normal relocation benefits include actual moving of personal property and reestablishment costs. A claim for relocation benefits is independent of the eminent domain additional damages claim and is typically negotiated between the property owner and the condemning authority. In some cases, a residential property owner could be entitled to significantly more than what they could receive through negotiations with the condemning authority. Also, complex relocations do arise for businesses with expensive fixtures and equipment. In these situations, it may become necessary for an owner to enlist the help of an eminent domain expert to calculate and negotiate these costs with the condemning authority. We discuss more on the topic of relocation benefits in a recent blog article.

Contact us at 866-339-7242 to find out more information about eminent domain definition.

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Eminent Domain Impacting My Farm http://www.condemnation-law.com/articles/eminent-domain-impacting-my-farm/ http://www.condemnation-law.com/articles/eminent-domain-impacting-my-farm/#comments Sun, 28 Dec 2014 15:12:20 +0000 http://www.condemnation-law.com/?p=8076 How Eminent Domain is Impacting My Farm As part of a highway reconstruction project, the State planned to acquire a parcel of property which contained a residential dwelling. The dwelling was of modest design and situated on a 17-acre parcel of land. The property was located in an area of increasing development at the intersection Continue Reading

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How Eminent Domain is Impacting My Farm

Eminent Domain Impacting My FarmAs part of a highway reconstruction project, the State planned to acquire a parcel of property which contained a residential dwelling. The dwelling was of modest design and situated on a 17-acre parcel of land. The property was located in an area of increasing development at the intersection of the reconstructed highway and a county road. All of the property fronting the highway in this area was destined for commercial development within the very near future. The State offered to acquire the entire parcel for $110,000 based upon an appraisal comparing sales of other homes. This included a premium for the extra land which accompanied the home.

Although the owner of the 17-acre parcel used it as a residence (and the State valued it that way), it was ideally located for a commercial property. Any purchaser would have torn the house down and built a commercial building on the site. All that was required was an easily obtainable change to commercial zoning. During the time of this offer, the State had also valued an unimproved, commercial land parcel in excess of $70,000 per acre. The similarities between this parcel and the 17 acre parcel were astounding:

  • similar commercial potential
  • on the same highway
  • both at intersections with county roads
  • only a couple of miles apart
  • The State chose to ignore these similarities when making its offer for the 17-acre parcel because the formal zoning change had not occurred. This was contrary to the law, though. The courts had stated that, where a zoning change is reasonably likely to occur, property value should be established assuming such a change. The State did not do that. Since the owner of the 17-acre parcel didn’t know the law, he accepted the State’s offer – and lost over $200,000 by doing so. Contact us for a free eminent domain attorney consultation at 866-339-7242!

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    Hiring the Wrong Appraiser in Eminent Domain http://www.condemnation-law.com/articles-eminent-domain/hiring-the-wrong-appraiser-in-eminent-domain/ http://www.condemnation-law.com/articles-eminent-domain/hiring-the-wrong-appraiser-in-eminent-domain/#comments Fri, 26 Dec 2014 13:23:23 +0000 http://www.condemnation-law.com/?p=8082 An owner of a small apartment building inquired whether his offer from the State was a fair one for his property. After analyzing the offer, it was determined that the State’s appraiser had made assumptions about the property’s income that incorrectly reflected market conditions. As a result the offer appeared to be 20 to 25 Continue Reading

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    Hiring the Wrong Appraiser in Eminent DomainAn owner of a small apartment building inquired whether his offer from the State was a fair one for his property. After analyzing the offer, it was determined that the State’s appraiser had made assumptions about the property’s income that incorrectly reflected market conditions. As a result the offer appeared to be 20 to 25 percent below what the property was really worth.

    Approximately 6 months later the same property owner called again. Now, though, his voice had a tone of desperation. Upon questioning he revealed that he had taken matters into his own hands with disastrous results. He had hired an appraiser to value his property without inquiring whether the appraiser really knew how to incorporate the highest and best use rules of eminent domain in his report. His appraiser produced a report which valued his apartment building even less than the offer from the State. To make matters worse, this new appraisal had been delivered to the State. He asked what could be done.

    After reviewing his new appraisal report, we discovered that that appraiser made the same mistakes in his analysis that were made by the State. Since this new report had already been given to the State, it could now be used against the owner. The owner was told that it was no longer possible to obtain the additional damages he should have received. The lesson to be learned from this example is that selecting an appraiser is an extremely important decision in the development of a condemnation claim, and acting on your own can ruin a good claim. We can give you this same analysis with an expert eminent domain attorney today!

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    Eminent Domain Compensation http://www.condemnation-law.com/articles-eminent-domain/eminent-domain-compensation/ http://www.condemnation-law.com/articles-eminent-domain/eminent-domain-compensation/#comments Wed, 03 Dec 2014 18:21:12 +0000 http://www.condemnation-law.com/?p=7653 Eminent Domain Compensation There are hundreds of road projects happening all over the country, whether they are small widening projects or new road realignments; construction projects are needed and will continue to happen throughout the rest of our lifetime. With most road projects comes property owner land impacts that vary depending on the take. The Continue Reading

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    Eminent Domain Compensation

    eminent domain compensationThere are hundreds of road projects happening all over the country, whether they are small widening projects or new road realignments; construction projects are needed and will continue to happen throughout the rest of our lifetime. With most road projects comes property owner land impacts that vary depending on the take. The Government can acquire land through Public Use: A use for property that is designed to benefit the public as a whole, rather than just a private individual or entity. When a property owner is getting land acquired by the Government, the owner needs to be compensated based on the value of the land the Government is acquiring and in some cases including the severance damage to the land they may be indirectly impacting. The Just Compensation Clause in the Fifth Amendment states the following “nor shall private property be taken for public use, without just compensation”. Just Compensation is fair market value of a parcel of property that must be paid to a land owner who has had his or her property taken by the government.

    When determining eminent domain compensation, or just compensation, the Government sends out an appraiser that they hired. The appraiser determines the value of the land, other value added land features and impact to the remaining, including severance damages. The offer is then made to the property owner, who would then consult an attorney to determine if the offer is fair. At Biersdorf & Associates, we review every offer and appraisal to determine just compensation at no cost to the property owner.

    When the Government makes an offer, they have to consider highest and best use, which we have detailed here. Most property owners receive fair offers, however, you should always consult an attorney before you accept the offer. Consulting an attorney on the offer will not cost you anything to review and determine your next best step for you and your property. Feel free to contact us at 866-339-7242 with any questions or a free consultation.

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    Roundabouts and their Impact in Eminent Domain http://www.condemnation-law.com/blog/roundabouts-and-eminent-domain/ http://www.condemnation-law.com/blog/roundabouts-and-eminent-domain/#comments Mon, 24 Nov 2014 19:45:57 +0000 http://www.condemnation-law.com/?p=7638 This is a summary regarding roundabouts and eminent domain, lets first start with a summary of roundabouts.  Roundabouts are becoming popular among states as they are construction more and more every year and they are outpacing the standard traffic light intersection projects.  In short, roundabouts are being used because they work well.  A roundabout used Continue Reading

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    roundabouts and eminent domainThis is a summary regarding roundabouts and eminent domain, lets first start with a summary of roundabouts.  Roundabouts are becoming popular among states as they are construction more and more every year and they are outpacing the standard traffic light intersection projects.  In short, roundabouts are being used because they work well.  A roundabout used at the right location will let you get through the intersection more safely and in less time.  Roundabouts show a 89 percent decrease in fatal crashes, a 74 percent decrease in life-altering injury crashes and a 39 percent decrease in all crashes.  Roundabouts handle high levels of traffic with less delay than most stop signs or signals.  The entry curve slow traffic so entering and exiting is easier and more efficient.

    By 2011, over 3,000 roundabouts have been established in the United States and this number continues to grow. One of the largest issues is that most of the US population never had experience driving through roundabouts.  Beyond that, there was no formal roundabout training in our drivers license classes.  This poses a huge problem for the population confronting these in our roadways.  Most of us have learned how to use them or we just flat out avoid them.  At this point they are here to stay.

    How will a potential roundabout impact your property?  Well, maps are readily available from the condemning authority or you can contact us if it’s far enough along.  If so, we can help you determine how the roundabout will impact your property today and future use.

    Depending on the circumstances, property value could be considerably damaged.  We have worked with property owners that have had roundabouts impact their development, farming operations, commercial property and more.  A few restaurants have been seriously impacted by access and parking loss as roundabouts tend to need more space than standard intersections.  There are several issues that roundabouts bring to property owners affected, please consult with an eminent domain attorney if you have any questions or concerns.

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    Tax Considerations in Eminent Domain http://www.condemnation-law.com/blog/tax-considerations-in-eminent-domain/ http://www.condemnation-law.com/blog/tax-considerations-in-eminent-domain/#comments Fri, 14 Nov 2014 22:36:35 +0000 http://www.condemnation-law.com/?p=7623 Eminent domain is the process by which the government or another entity has the ability to take private property for public use. Any property taken through eminent domain must be fairly compensated. This triggers a process by which “fair compensation” is determined. Once this process is complete, the condemning authority will pay an award to Continue Reading

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    Eminent domain is the process by which the government or another entity has the ability to take private property for public use. Any property taken through eminent domain must be fairly compensated. This triggers a process by which “fair compensation” is determined. Once this process is complete, the condemning authority will pay an award to the owner of the property.

    Tax Considerations Eminent Domain

    It is important to note that the system taxes income regardless of the source and so any “award” for compensation of a condemned property would be subject to taxation. For tax purposes, such proceeds from property acquired through eminent domain (or receipt of a condemnation award) would be treated no differently from a sale of the property. Taxable gain (amount by which the sale price exceeds the tax basis of the property) results when a property is taken by condemnation (or sold under threat of eminent domain). Tax basis is determined as the original purchase price of the property, less depreciations, plus any costs of improvements. Taxable gain could be significant if the property being condemned was purchased decades ago, as may be the case with agricultural properties. If a property owner faces eminent domain, it is important to the review the situation not only with an attorney but also with a CPA or a tax advisor. It should also be noted that not only could the award for the condemned property be subject to taxation but any lien holder or lender may also have a claim to the awarded funds.  In most states, you may have the ability to use the proceeds and not be obligated to pay tax if you purchase another property or real estate within a two year time frame.  Again, we recommend consulting a CPA or tax consultant in your state for more information.

    Taxation of the award is subject to IRS statutes and regulations and, depending on how the award for the condemned property is distributed; the income from the proceeding may or may not taxed. Tax planning with the advice of an experienced tax attorney or CPA before and after condemnation may reduce or eliminate the tax costs.  If you have questions about the condemnation of your property, we consult with your CPA’s concerning taking issues because condemnation may in some cases make your property less valuable after a partial taking which may impact your taxes.  For more detailed information on taxation, it would be beneficial to contact a CPA or a tax advisor.

     

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    Northeastern Illinois University Expansion Project http://www.condemnation-law.com/articles-eminent-domain/northeastern-illinois-university-expansion-project/ http://www.condemnation-law.com/articles-eminent-domain/northeastern-illinois-university-expansion-project/#comments Wed, 27 Aug 2014 19:16:45 +0000 http://www.condemnation-law.com/?p=7044 Northeastern Illinois University plans to develop new dormitories and apartments to draw greater attendance of students. Currently, NEIU is a commuter school and enrollment rates have been declining for the last three years. As part of the new development plan, NEIU will be expanding its campus on the corner of Bryn Mawr and Kimball Avenues. Continue Reading

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    Northeastern Illinois University plans to develop new dormitories and apartments to draw greater attendance of students. Currently, NEIU is a commuter school and enrollment rates have been declining for the last three years. As part of the new development plan, NEIU will be expanding its campus on the corner of Bryn Mawr and Kimball Avenues. The expansion plans are opposed by neighboring residents and business owners. NEIU has notified property owners of plans to acquire property, and if agreement cannot be reached, will invoke eminent domain condemnation.

    This project affects six small businesses properties. NEIU has started initial negotiations by sending first offers to the property owners. Property owners are strongly opposing the expansion as it affects their businesses and livelihoods. Another point of protest of the project expanding on Bryn Mawr is that the university already owns property on its campus that would be suitable for developing into housing. NEIU, however, will go ahead with the expansion on Bryn Mawr as the university feels that it is critical to revitalize the neighborhood not only to make the school more attractive to students, but also for the good of the neighborhood.  NEIU has already sent out initial offers to property owners in order to begin negotiation of the taking. Property owners have stated that the offers come nowhere close to the income the properties generate, and will be challenging NEIU’s right to eminent domain in court.

    Dan Biersdorf discussed the project with Tony Sarabia on WBEZ 91.5 Chicago NPR News. In order for a government entity to acquire property under eminent domain, two requirements have to fulfilled: the project needs to be for public use (public purpose) and the government must pay owners of condemned property just compensation (fair market value). This means that since NEIU is a government-funded, public university, it will be able to exercise eminent domain. While property owners are trying to challenge the right-to-take, historically the courts have ruled against such a challenge. The next part of the litigation would be determining just compensation for the properties to be condemned. This would involve appraisal of properties. Property owners should realize that the government is like any other buyer and it will want to acquire the property as cheaply as possible. Even though there may be an appraisal of the property to determine fair market value, property owners should also be aware that appraisals can vary and NEIU’s appraisal and subsequent offer may be a low one.

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    Rails to Trails Supreme Court Decision http://www.condemnation-law.com/articles-on-case-evaluations/rails-to-trails-supreme-court-decision/ http://www.condemnation-law.com/articles-on-case-evaluations/rails-to-trails-supreme-court-decision/#comments Mon, 07 Apr 2014 15:10:25 +0000 http://www.condemnation-law.com/test1/?p=6464 A Wyoming man has won a Supreme Court case fighting efforts to route the Medicine Bow Rail Trail through his family’s property. On Monday the Supreme Court decided in favor of the landowner ruling abandoned rail road tracks are not under the federal government’s control. Last year we discussed in a blog the Supreme Court’s acceptance of Continue Reading

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    A Wyoming man has won a Supreme Court case fighting efforts to route the Medicine Bow Rail Trail through his family’s property. On Monday the Supreme Court decided in favor of the landowner ruling abandoned rail road tracks are not under the federal government’s control.

    Last year we discussed in a blog the Supreme Court’s acceptance of the Marvin Brandt Revocable Trust v. United States for review. At issue was the disagreement over who retained the ownership of a railway after abandonment. The government claimed that it retained exclusive possession of the right-of-way. The landowner, Brandt, contended that he owned the right-of-way without any rights reserved to the United States.

    Brandt brought a lawsuit when the Forest Service moved to convert a portion of abandoned rail road tracks through the Brandt property into a bike trail. Before the lawsuit reached the Supreme Court, district and appeals courts had ruled in favor of the government concluding that the United States possessed an “implied” ownership interest in the abandoned right-of-way. These rulings subjected Brandt to an easement that was arguably found nowhere in any deed or declaration on the property.

    The Supreme Court overruling the decisions by the lower courts could have vast implications in other rail to trail projects being planned throughout the nation. The wider impact is hard to estimate in part because the U.S. government doesn’t have a central database of the land it owns under railroad easement that has since been abandoned. Currently there are about 80 similar cases where this decision could mean that the landowner will walk away victorious.

    We will continue to monitor this decision and its effect on landowners and property rights.

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    Regulatory Takings Revisited http://www.condemnation-law.com/articles/regulatory-takings-revisited/ http://www.condemnation-law.com/articles/regulatory-takings-revisited/#comments Thu, 27 Mar 2014 15:09:04 +0000 http://www.condemnation-law.com/test1/?p=6462 When the condemning authority exercises its power of eminent domain it is commonly referred to as a “taking”.  A “taking” is any sort of publicly inflicted private injury for which the Constitution requires payment of compensation.  Our general perception of a “taking” involves a physical invasion of private property by a condemning power which results Continue Reading

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    When the condemning authority exercises its power of eminent domain it is commonly referred to as a “taking”.  A “taking” is any sort of publicly inflicted private injury for which the Constitution requires payment of compensation.  Our general perception of a “taking” involves a physical invasion of private property by a condemning power which results in the payment of compensation to the landowner and the transfer of ownership of the subject property  from the landowner to the condemning authority.

    It’s important to understand that not all “takings” involve a physical invasion and transfer in ownership of private property.  One such taking has been termed a “regulatory taking”.    Many courts have defined a regulatory taking as an inverse condemnation claim based on land use restrictions.  Generally, regulatory takings actions have been brought on the following grounds:

    1. Denial of a permit or license
    2. Zoning, rezoning and other land use regulations

    While more traditional eminent domain cases are initiated by the government, regulatory takings are generally initiated by the landowner as an inverse condemnation claim.  Learn more about inverse condemnation claims.  Before you initiate a regulatory takings case, it’s important to know what type of claim you have.  Generally, these types of cases fall under three categories:

    1. A regulation that will necessarily affect the physical invasion of unspecified private property
    2. A regulation that substantially causes property to lose all economic utility, and
    3. A regulation that substantially interferes with a property’s economic utility.

    Physical Invasion-Loretto

    In some instances, a regulation may contemplate a physical invasion.  In Loretto v. Teleprompter Manhattan CATV Corp., the City of New York required landlords to allow cable television companies to install wiring on the sides of residential buildings.  458. U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982).  The regulation did not appropriate any property in particular, but did give cable companies the right to place cable in the exterior physical space previously under the exclusive domain of the landlord.  The Supreme Court held that this regulation, which necessarily caused a physical invasion, was a taking that required compensation.  To obtain relief under this claim, the landowner must establish that the regulation necessarily causes a physical invasion of his private property.

    Total Loss of Value – Lucas

    In rare circumstances, the interference with the landowner’s property rights may be so sever as to trigger this “categorical” taking even without a physical invasion.  This occurs only when the regulation “denies all economically beneficial or productive use of land.” Lucas, 505 U.S. at 105.  As an illustration, in Lucas, the landowner, David Lucas, purchased two residential lots on the Isle of Palms off the coast of South Carolina in 1986.  Lucas intended to build two single family homes on the lots.  In 1988, the South Carolina Legislature enacted the “Beachfront Management Act” that prohibited Lucas from building these homes or any other structure.  The trial court held that this restriction left Lucas’ property “valueless” and ordered just compensation be paid.  The Supreme Court agreed: where a regulation deprives an owner of all economic utility, it is a taking under the First Amendment.

    Substantial Interference with Economic Utility – Penn Central

    Although an act that deprives the owner of all economic utility is categorically a taking, the regulation need not completely eliminate the economic use of a property to give rise to a regulatory takings claim.

    So, how far is too far?  The issue then moves to what specific facts are necessary to show that a regulation has gone “too far?”  For those regulatory takings cases that involve economic interference with property rights but fall short of Lucas’ total deprivation of value, courts rely on what is known colloquially as the “Penn Central Test”.

    The Lucas or Loretto cases are rare.  Much more common is the case that requires application of the Penn Central factors.  In Penn Central, New York City applied a landmark historical preservation law to Grand Central Terminal.  In 1968, the owner of the Terminal, Penn Central, entered into a lease with UGP Properties to construct a multistory office building above the Terminal.  UGP and Penn Central presented two proposals to the historic preservation commission, both of which contemplated office towers of 50-stories or more.  The commission denied both proposals noting in part that the 50-story structures did not harmonize with the look and feel of the historic terminal.

    UGP and Penn then “sought a declaratory judgment, injunctive relief barring the city from using the Landmarks Law to impede the construction of any structure that might otherwise lawfully be constructed on the Terminal site…” Penn Cent., 438 U.S. at 119, 98 S. Ct. at 2656.  UGP and Penn Central argued that application of the landmark designation affected a “taking” of the Terminal.

    Although the Court found against UGP and Penn Central, the Court nevertheless ushered in a new era of regulatory takings.  The Court suggested that a substantial interference could potentially affect a taking (even if in Penn Central it did not).  The Court enumerated the factors to be considered by the courts for this claims as follows:

    1. The character of the government action;
    2. The economic impact of the regulation on the claimant,
    3. The extent to which the regulation has interfered with reasonable investment-backed expectations.

    The Supreme Court failed to articulate exactly how these factors should be applied (or even exactly what they mean) and in practice, courts around the country seem to either ignore 2 of the factors, or analyze them all under this paramount factor: the extent to which the regulation has interfered with reasonable investment-backed expectations.

    One of the issues then becomes: what expectations by the landowner is reasonable?  How far is too far?  We’ve analyzed this question in Land Owner Expectations vs. Land Use Regulations.

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    Dan Biersdorf Selected to the 2014 Super Lawyers List http://www.condemnation-law.com/articles-eminent-domain/dan-biersdorf-selected-to-the-2014-super-lawyers-list/ http://www.condemnation-law.com/articles-eminent-domain/dan-biersdorf-selected-to-the-2014-super-lawyers-list/#comments Fri, 14 Mar 2014 15:05:40 +0000 http://www.condemnation-law.com/test1/?p=6460 We are pleased to announce that lead attorney Dan Biersdorf of Biersdorf & Associates has been selected to the 2014 Super Lawyers List.   This is an exclusive list, recognizing no more than five percent of attorneys in the state. Super Lawyers, a Thomson Reuters business, is a research-driven, peer influenced rating service of outstanding lawyers Continue Reading

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    We are pleased to announce that lead attorney Dan Biersdorf of Biersdorf & Associates has been selected to the 2014 Super Lawyers List.   This is an exclusive list, recognizing no more than five percent of attorneys in the state.

    Super Lawyers, a Thomson Reuters business, is a research-driven, peer influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Attorneys are selected from more than 70 practice areas and all firm sizes, assuring a credible and relevant annual list.

    The annual selections are made using a patented multiphase process that includes:

    • Peer nominations
    • Independent research by Super Lawyers
    • Evaluations from a highly credentialed panel of attorneys

    The objective of Super Lawyers is to create a credible, comprehensive and diverse listing of exceptional attorneys to be used as a resource for both referring attorneys and consumers seeking legal counsel.

    The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country, as well as the Minnesota Super Lawyers Digital Magazine.

    Please join us in congratulating Dan Biersdorf on his selection.

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    Public Meetings for Property Owners Affected by the Ohio Pipeline (OPEN) Project http://www.condemnation-law.com/firm-projects/ohio-projects/public-meetings-for-property-owners-affected-by-the-ohio-pipeline-open-project/ http://www.condemnation-law.com/firm-projects/ohio-projects/public-meetings-for-property-owners-affected-by-the-ohio-pipeline-open-project/#comments Thu, 20 Feb 2014 15:04:36 +0000 http://www.condemnation-law.com/test1/?p=6458 Ohio Pipeline (OPEN) Project Two public meetings for property owners affected by the Ohio Pipeline Energy Network Project (OPEN) being constructed by Spectra Energy will be held on Saturday, March 1st. The meetings will be facilitated by our local attorneys in Ohio, Phil Sever and George Padgitt. Anyone interested in hearing more about the project Continue Reading

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    Ohio Pipeline (OPEN) Project

    Two public meetings for property owners affected by the Ohio Pipeline Energy Network Project (OPEN) being constructed by Spectra Energy will be held on Saturday, March 1st. The meetings will be facilitated by our local attorneys in Ohio, Phil Sever and George Padgitt. Anyone interested in hearing more about the project and learning about your rights as a property owner is welcome and encouraged to attend.

    Meeting Details:

    Meeting 1:
    Time: 10:30 AM

    Location: Schiappa Library
    4141 Mall Drive
    Steubenville, OH 43952

    Meeting 2:
    Time: 2:00 PM

    Location: Ohio County Library
    Downstairs – Auditorium
    52 16th Street
    Wheeling WV 26003

    If you have any immediate questions regarding the project and how it might affect your property, don’t hesitate to call us at 866-339-7242.

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    Ohio Pipeline Energy Network (“OPEN”) Project http://www.condemnation-law.com/firm-projects/ohio-projects/ohio-pipeline-energy-network-open-project/ http://www.condemnation-law.com/firm-projects/ohio-projects/ohio-pipeline-energy-network-open-project/#comments Tue, 07 Jan 2014 15:02:36 +0000 http://www.condemnation-law.com/test1/?p=6456 The Project The Ohio Pipeline Energy Network (“OPEN”) Project will consist of approximately 73 miles of new 30-inch diameter mainline pipeline and associated pipeline support facilities in Ohio, including a new compressor station.  The pipeline will extend through Columbiana, Carroll, Jefferson, Belmont, & Monroe counties and is designed to provide pipeline transportation capacity to deliver Continue Reading

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    The Project

    The Ohio Pipeline Energy Network (“OPEN”) Project will consist of approximately 73 miles of new 30-inch diameter mainline pipeline and associated pipeline support facilities in Ohio, including a new compressor station.  The pipeline will extend through Columbiana, Carroll, Jefferson, Belmont, & Monroe counties and is designed to provide pipeline transportation capacity to deliver new production from the emerging Utica Shale and Marcellus Shale plays to the markets in the Midwest, Southeast and Gulf Coast.

    Project Timeline

    The project is facilitated by Spectra Energy and Texas Eastern and regulated by the Federal Energy Regulatory Commission (FERC).  Texas Eastern initiated the pre-filing process with FERC in June 2013, and they plan on submitting the certificate application by the Environmental Assessment (EA)  by FERC, followed by a comment period and public hearings.   The Commission will consider the findings in the EA together with non-environmental information before making its decision about whether or not to approve the project.

    Texas Eastern is expecting FERC approval by December 2014.  However, before a project of this caliber can be constructed, it must obtain approval from various cooperating agencies in addition to FERC.   They must also secure the necessary ROW for the project.  Many landowners will choose not to sell their property willingly, which will force Texas Eastern to invoke their eminent domain authority (if the project is approved by FERC).   For most landowners, condemnation will be their only legal remedy for securing just compensation for their loss.  In condemnation, landowners can show that their easement and severance damages are worth more than what is being offered.

    What does this mean for landowners?

    The proposed Project will impact approximately 255 landowners or 382 tracts along the pipeline. In April 2013, Texas Eastern hosted 3 informational meetings for stakeholders in Ohio in the vicinity of the proposed facilities. Alignment sheets identifying impacted tracts by landowner were set up on posters to allow for site specific discussion between right-of-way agents and interested stakeholders.

    If your property lies within the pipeline’s path, you will be approached about the purchase of an easement across your land.  It is important for property owners affected by the project to know that utility companies are like any buyer, they will want to purchase your property as cheaply as they can.

    Utility companies determine the value of easements by analyzing the impact to the surface of land with the easement in place.  This analysis invariably leads to low levels of compensation.    They consistently fail to compensate property owners for the value of the easement itself.  When determining just compensation for utility and pipeline easements, the largest value typically doesn’t come from the impact to the surface of the property; it comes from the value of the easement.

    If you’re a property owner affected by the OPEN Project, you should know that you have time to determine how best to proceed, and you have rights if you choose to assert them.  Do NOT feel pressured into accepting their offer without first contacting an eminent domain lawyer.

    If you have questions regarding the value of your easement and your rights in the eminent domain process, don’t hesitate to contact us.January 2014 in order to begin construction by April 2015.   Once the application is filed, the next major milestone is the issuance of

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    Landowner Expectations vs. Land Use Regulations http://www.condemnation-law.com/articles/landowner-expectations-vs-land-use-regulations/ http://www.condemnation-law.com/articles/landowner-expectations-vs-land-use-regulations/#comments Fri, 20 Dec 2013 14:59:12 +0000 http://www.condemnation-law.com/test1/?p=6454 The U.S. Supreme Court has long held that land use regulations (e.g. zoning ordinances) can go “too far” and cause a “taking” of property for which just compensation must be paid under the fifth amendment of the Constitution.   These cases are known as “regulatory takings.”  Less clear is how to establish how far is “too Continue Reading

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    The U.S. Supreme Court has long held that land use regulations (e.g. zoning ordinances) can go “too far” and cause a “taking” of property for which just compensation must be paid under the fifth amendment of the Constitution.   These cases are known as “regulatory takings.”  Less clear is how to establish how far is “too far.”

    In one of the leading cases on regulatory takings, Penn Central, the Court set out 3 factors to determine if a regulatory taking had occurred.  In practice however, courts around the country seem to either ignore 2 of the factors, or analyze them all under this paramount factor: the extent to which the regulation has interfered with reasonable investment-backed expectations.

    One of the issues then becomes: what expectations by the landowner are reasonable?  In many cases, state courts have ruled that if the land use regulation was in effect at the time the landowner took possession of the property, then any expectations inconsistent with that regulation are unreasonable.  The Supreme Court has phrased this argument as such: “The theory underlying the argument that postenactment purchasers cannot challenge a regulation under the Takings Clause seems to run on these lines: Property rights are created by the State. So, the argument goes, by prospective legislation the State can shape and define property rights and reasonable investment-backed expectations, and subsequent owners cannot claim any injury from lost value. After all, they purchased or took title with notice of the limitation.”  Once determining that the landowner’s expectations are unreasonable, the courts have then dismissed the regulatory takings claim.

    In an Oregon case decided in 1993 (Dodd), the landowners (the Dodds) purchased 40 acres in Hood River County’s forest zone in 1983.  The owners intended to construct a retirement home on the property.  At the time of purchase, the zoning allowed construction on a dwelling, but the County was then in the process of revising its comprehensive plan to bring the plan into compliance with statewide planning goals.  After the zoning was amended, the ordinance prohibited the construction of a dwelling unless necessary for a forest use.  When, in 1990, the Dodds applied to construct a dwelling, the County denied the permit.  After an administrative appeal, the Dodds pursued a takings claim.  The Oregon Supreme Court denied the Dodds’ claim, noting that the property could still be used productively for timber, and that the Dodds plans to build a dwelling were not reasonable because they had “constructive notice as to the pending zoning limitations.”

    In 2001, however, the U.S. Supreme Court decided Palazzolo v. Rhode Island.  In Palazzolo, the majority held that unreasonable regulations “do not become less so through passage of time or title.”  The Supreme Court held that taking title with notice of regulations does not exempt their challenge under the takings clause and noted that “[f]uture generations, too, have a right to challenge unreasonable limitations on the use and value of land.”

    Although Palazzolo seemed to discourage courts from using notice of a regulation as a total bar to a takings claim, state courts have nevertheless applied a Dodd analysis.  The confusion may stem from the nature of the Palazzolo majority.  Three justices seemed to agree that notice of the regulation was irrelevant to a determination of investment-backed expectations.  Justice Scalia, concurring with the majority, stated explicitly that the existence of a regulation at the time the purchaser took title “should have no bearing upon the determination of whether the restriction is so substantial as to constitute a taking,” and  that investment-backed expectations “do not include the assumed validity of a restriction that in fact deprives property of so much of its value as to be unconstitutional.” Palazzolo, 533 U.S. at 637, 121 S. Ct. at 2468.

    Justice O’Conner, however, stated that the holding of Palazzolo “does not mean that the timing of the regulation’s enactment relative to the acquisition of title is immaterial to the Penn Central analysis.”  Indeed, O’Connor went on to state that “the regulatory regime in place at the time the claimant acquires the property at issue helps to shape the reasonableness of those expectations.”  O’Connor concluded by saying that pre-acquisition notice of a regulation is a single non-dispositive factor in a Penn Central analysis.  Palazzolo, 533 U.S. at 635-36, 121 S. Ct. at 2467.

    Nevertheless, when Penn Central applies, “state courts have continued to find the claimant’s investment-backed expectations unreasonable and the claim without merit if the owner was on notice of regulation at the time of property acquisition.”  J. David Breemer, Playing the Expectations Game: When Are Investment-Backed Land Use Expectations (Un)reasonable in State Courts?, The Urban Lawyer, Vol.   38 No. 1, Winter 2006.  In other words, despite the implicit holding of three Supreme Court Justices and explicit holding of another, state courts are considering pre-acquisition notice as a factor in determining the reasonableness of investment-backed expectations.  Not only that, but, seemingly also ignoring Justice O’Connor, state courts are continuing to use pre-acquisition notice of a regulation as a categorical bar to a Penn Central takings claim.  Before pursuing any regulatory takings claim, be certain to know how your state treats notice of regulations before acquisition of your property.

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