National Eminent Domain Blog : Eminent Domain Lawyer & Attorney : Ackerman Ackerman & Dynkowski : Michigan, Ohio, Illinois

Roanoke Virginia Times

"We're going to prove that Carilion and the city got together in advance and decided to make that land available for Carilion. And then, to satisfy the agreement, adopted the redevelopment plan," said Joseph Waldo, B&B's lawyer. "The cart was clearly before the horse."

Originally slated to be a biomedical business park, the area has evolved into a home for Carilion physicians and the new Virginia Tech Carilion School of Medicine and Research Institute.

The latest estimated budget for the redevelopment project has grown to $26 million from an early estimate in 2000 of $14 million, according to the cooperation agreement between the city and the housing authority.

The housing authority's lawyer, Mark Loftis, said while Carilion and the city did talk about the South Jefferson area and the biomedical park early on, it didn't affect the housing authority's role.

The housing authority has argued that the purpose of the redevelopment plan is to remove blight and blighting influences.

"Certainly Carilion and the city had discussions and Carilion was interested in this area, but the housing authority is the one that engaged the consultants and made the blight determination," Loftis said. "While the city entered into agreements with Carilion, those don't bind the housing authority."

B&B is not considered a blighted property. Instead, it was surrounded by blight, and under the law at the time of the 2001 plan, the housing authority could include properties that were not blighted so long as the majority of the properties in redevelopment areas were blighted, Loftis said.

According to the redevelopment plan, 74.4 percent of the South Jefferson redevelopment area was either blighted or improperly developed.

This is an article, which is illustrative of the problems of ascertaining the propriety of takings for blight.  By example, how does an ‘improperly developed’ property give rise to a cities right to acquire under blight?  Is this a veiled attempt to take something not blighted?  Is the private development a public use?  Or the developer’s profits?

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Des Moines Register

Compressed air would be stored in a network of 13 wells 3,000 feet deep and then released at strategic times to turn the turbines on two 134-megawatt electricity generators.
The stored energy project is promoted as not only a source of non-fossil-fuel energy but also a way to store some of the surplus electricity generated during nonpeak hours.The house and land just west of Dallas Center will be bought from Ray Keith. The Stored Energy Center also is negotiating a potential lease with another Dallas County landowner, John Mortimer, but the two sides have yet to reach an agreement.
Stored Energy Park officials hope to have the first well drilled by fall. The well will test the ability of Iowa's subsurface rock to hold air compressed up to 1,400 pounds per square inch.
"This will get us started on the first phase of the project," Stored Energy Park attorney Nicholas Critelli told the board before the vote. "In order to have some comfort level we need to do some invasive testing."

The recent Des Moines Register article fails to include a note that those who own land above the future storage area have rights!   The communities should anticipate a very unpleasant surprise.

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LoHud.com

PORT CHESTER - The village apologized to a property owner today for improperly seizing his land a decade ago and officially signed an agreement that will pay him $475,002 and name a street after him.

"The village acknowledges the importance of this litigation and regrets the hardship it has caused Mr. Brody for the years he has had to fight to vindicate his rights," Mayor Dennis Pilla read from a statement at Village Hall.

The public apology was part of a settlement that will give William Brody $475,002 and name the corner of North Main Street and East William Street "William Brody Plaza."

"I'm glad everything came to a close," Brody said after the news conference.

Dana Berliner, his attorney with the Institute for Justice, acknowledged that the terms of the agreement were unusual, but noted that Brody's case led to a landmark change in state eminent-domain law.

This recent, Lower Hudson Journal News, article hits on something that places similar to Freeport, Texas should look at; a simple apology by a condemning agency for taking away an individual’s right to maintain and own property.

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Business Week

Assessed at $148,400; bought for $280,000. Assessed at $172,200; bought for $345,000. Assessed at $440,000; bought for $2.8 million.

Yi's property assessed in 2007 at $88,200. The city is offering $100,000.

What's wrong with this picture?

City officials: Stop paying your attorney to duke this out in court and offer the man $200,000 plus the legal expenses he incurred so far to fend you off. Do it before those expenses climb any higher.

The recent Newport Daily News article in Virginia fails to recognize that the assessed value frequently is a gross underestimation of fair market value. Few people call the local assessor and say, “you have under assessed me, so please raise my assessment so I can pay more taxes.” The assessment should not be used as part of the analysis because it is inadmissible information  due to it being unrelated to fair market value.

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Post Trib

School officials were waiting for their attorneys to review the decision.

"(The resolution) is an option they have threatened to exercise in the past," said School Board President Nellie Moore. "If that's what they choose to do instead of a more amicable resolution, then I have no problem with that."

School district attorney Ragen Hatcher was less diplomatic.

"I would think they would've at least invited a representative from the school district to the meeting," Hatcher said of the Board of Works decision.

According to the city's resolution, the impasse comes after three years of "extraordinary good faith efforts" by the city and the airport to reach a deal with the schools.

"The action avoids any more delays to the timetable for the (runway) expansion," Curry said, "and now a court of law will determine the appropriate value of the land."

Why would a school system expect any different treatment than any other owner?  Governments rarely truly provide notice to the owners of property when it decides to utilize the eminent domain process.  However, the process in most States does require some attempt to negotiate prior to the filing of a condemnation complaint.  Indiana, where this taking is to occur, has a process.

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 Gary Post Tribune

But the School Board -- facing a fiscal deficit -- wants $3.75 million for the land. That's terribly unrealistic, even if the schools would choose to preserve the land and include it in its curriculum.

The School Board now is taking the insanity to a new level by spending $30,000 on an appraisal. It would appear the School Board knows acquisition of the land is vital is the Airport Authority, and as a result is demanding an outrageous price.

Litigating the matter isn't the answer. That will be the case if the two sides can't agree and the city proceeds with eminent domain, as it threatened last week.

We hope Mayor Rudy Clay steps in, brings the two sides to the table and issues the following mandate: Don't leave the room until you have settled the matter.

What is good for the airport is good for the city of Gary, including the schools. The airport remains the city's greatest hope for the future. Further delays would be unconscionable.

Often, we need to have the judicial system intervene on behalf of two behemoths, such as a city and an airport.  The Gary, Indiana situation above is not an exception.  The dispute involved federal funds to acquire land versus individual community vested tax dollars.  In the case of education funding, the tax dollars are usually derived from real estate assessments.  The Gary newspaper is simply way off base!

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Daily Press 

In explaining the contract, city officials said the Hornsbys were already in the midst of expanding their business on land next door, so the city's offer not only had to consider the cost of the existing business and the planned expansion but also the number of jobs the new facility would create and its future growth potential.

"It's more than replacing an existing business and more than just a land acquisition," Kingston said.

• In 2008, the city bought two properties on Oyster Point Road, which were needed for the expansion of the city's Public Works operations center. Both properties were purchased for more than double the assessed value and after two appraisals were done for each of the properties.

Usually, the city tries negotiating sale prices with property owners. If this fails, however, the city has two options to go through the condemnation process.

The more traditional approach is called slow-take, which requires a trial to determine fair market value.

Another option is called quick-take, during which the city would deposit the appraised value of a property with the courts and then take immediate possession of the property.

"In this case, the judge said for this project, the locality can't take that procedure," Jackson said. "But the condemnation is still authorized and lawful. We simply have to go through the slow process."

Usually, the city tries to avoid going through the court process because of the expense.

In 2002, for example, Newport News offered the owner of a downtown property $310,000 based on an appraisal. The city needed the land for the expansion of the district court. The owner, however, refused to sell.

A judge in 2006 ordered the city to pay him $500,000, city officials said.

"It's not so much that the jury generally sides with the property owner," Jackson said. "But it's more of a byproduct of how the legal system works." With the locality offering one amount and the property owner wanting another, it is very likely a jury will pick a number in between, Jackson said.

Yi's attorney argued that the recreation center does not rise to the level of an urgent and immediate need for condemnation.

"It does not justify this extreme measure," said Henry E. Howell III, Yi's attorney.

"The recreation center is not even funded yet," he said. "What they should do is to give the owner more time. Don't rush into it and condemn the property."

The case is now set for a jury trial to determine the value of the property, Jackson said. A trial date has not been determined yet.

"They did not use a quick condemnation with Denbigh Toyota," Howell said, but it was used on "the little people" next door

This recent Newport News article describes the problems and harshness of quick take proceedings.  It also describes the problem with eminent domain proceedings initiated prior to funding for the project or finalization of the project plans.

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 DENVER (AP) — The Army's plan to expand a southeast Colorado training site is facing another obstacle now that Gov. Bill Ritter has signed a measure barring the use of state land for the project that is opposed by ranchers.

Ritter approved legislation Tuesday that prevents the state from selling or leasing land to the Army to expand the Pinon Canyon Maneuver site. About 20 percent of the land the Army wants for the site is state-owned.

The Army first announced its plans more than three years ago, saying it needed to expand the 370-square-mile site to about 525 square miles to accommodate new weapons, tactics and soldiers. But neighboring ranchers united to fight the effort, picking up support from state lawmakers and members of Congress.

They also filed a federal lawsuit accusing the Army of not carefully considering the environmental impact of the expansion on the arid, short-grass prairie landscape. Judge Richard Matsch is scheduled to hear arguments in that case in Denver on Wednesday.

Ritter said the bill was not anti-military, as Colorado's two Republican congressmen suggested. He said it doesn't resolve the issue but will provide farmers and ranchers with a safety net while negotiations continue with the Army.

"This legislation says to landowners that their state government is listening. It also reaffirms our commitment to work with all stakeholders to find a mutually agreeable path forward, a path that protects private property rights and allows the military to effectively train this nation's fighting force," Ritter said.

What this Governor is really saying is that he wants your vote.  The reality is that  the United States can acquire the property if the public need is there to expand the facility.  What the State of Colorado has to say would be irrelevant because the Constitutional delegation for the military needs of the United States of America will prevail over local desires!

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Newark Advocate

John Boesch's house stands vacant along Ohio 161, with the only sign of life being the big yellow one declaring his feelings for the state transportation agency.

Many of his neighbors lost their houses entirely to the new four-lane highway project, which is scheduled for completion in May 2010. The Ohio Department of Transportation has spent $41.6 million just on property acquisition, far more than it offered the dozens of property owners along the highway.

On average, property owners who took ODOT to court before giving up their land for the new Ohio 161/37 gained almost $250,000 more than they originally were offered, according to records obtained from the state in a public records request.

Of the people who ended up in court, the median increase they received was 82.8 percent greater than the original offer, or $65,000 more. By contrast, the additional money received by property owners by negotiating with ODOT or because of additional damages was 5.6 percent higher than the original offer, or $9,700 more.

In the end, the median amount property owners received was $154,000, including both people who lost their homes and those who lost land.

Bill and Helen Bettac joke about people wondering if they made millions. They received $165,000 for a house they were told was worth $285,000 by others. 

Condemning agencies generally try to "do it right" although they often undervalue property. However, the extent of underestimation described in the Newark, Ohio newspaper seems outside a statistically reasonable range of error.

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