Lawyer's Guide to Eminent Domain Issues

A Lawyer’s Take on
Eminent Domain Issues –
Better Planning to Minimize
Impacts to Business Owners

Presented by:
Anthony H. Misseldine

©JacksonWhite, P.C.
(2012) All Rights Reserved

FY 2016 CONSTRUCTION
PROGRAM

?

FLOOD CONTROL DISTRICT OF MARICOPA COUNTY:

ACTIVE PROJECTS

―. . .nor shall private property be taken for public use,
without just compensation.‖

5th Amendment to the United States Constitution

• ―Private property shall not be taken for
PRIVATE use. . .‖

• ―No
private property shall be taken or
damaged without JUST
COMPENSATION having first been
made. . .‖

Arizona Constitution: Article 2 Section 17

CAN THE EXERCISE OF THE POWER OF
EMINENT DOMAIN BE CHALLENGED??


YES, BUT FEW SUCCEED.
• Early involvement
• Be aware of planning process
• Give input (show up at public meetings)
• What is at stake if the project is approved?


WHAT IS A TAKING?


A TAKING MAY BE. . .

• TOTAL OR PARTIAL

• PERMANENT OR TEMPORARY

• REGULATORY


WHAT MAY BE TAKEN?


WHAT INTERESTS IN ―PROPERTY‖ MAY BE
TAKEN BY EMINENT DOMAIN?

• ANY INTEREST IN REAL PROPERTY

• FEE TITLE

• LEASE (LANDLORD/TENANT)

• EASEMENT/LICENSE

• SURFACE/SUBSURFACE


WHAT ARE NON-COMPENSABLE
DAMAGES?

BUSINESS LOSSESS


The Process

1. Resolution to acquire property (purchase or condemnation)
2. Appraisal or basis for valuation
• Be careful what you say or disclose
3. Offer to purchase (20 days)

4. If the property owner accepts—sale of real estate

5. If not, government must condemn:
• File lawsuit
• Immediate possession
• Expert reports/Rebuttal
• Trial
• Judgment (jury trial)
• Government pays the judgment
• Court enters a ―Final Order‖ conveying title

WHAT IS IMMEDIATE POSSESSION?

• GOVERNMENT’S RIGHT TO USE THE PROPERTY BEFORE
JUDGMENT IS AWARDED (ARS § 12-1116)
• DEPOSIT OF ―PROBABLE DAMGES‖
• PRE-JUDGMENT INTEREST ON DAMAGES FROM THE DATE OF
POSSESSION
• Includes actual damages awarded above the deposit
• The deposit may be drawn down, but there is a catch.


HUH?

• WHAT MAY AN OWNER DO WITH PROPERTY AFTER
A PUBLIC PROJECT IS ANNOUNCED, BUT BEFORE
A CONDEMNATION LAWSUIT?

• REASONABLE ENHANCEMENTS


NECESSARY INFORMATION

• Title report (read it and related documents)

• Alta survey of property

• Aggregate/Ore studies

• Reserve studies

• Supply/Demand information

• Operating information

• Royalty rate data

• Permit status and history

• Ownership

75TH AVENUE & THE SALT RIVER


VALUATION AND APPRAISAL
ISSUES
Who may testify as to the value and damages?

• Property Owner (Company representative with knowledge/authority)

• Appraiser
• Not all appraisers are the same

• Valuation method(s) must be accepted by the courts

• ―Daubert‖ challenges

• Cost

• Other experts may be required

POTENTIAL CONCERNS

• Tax valuation appeals

• Business records being shared

• Violations or citations

• Lapsed permits

• Statements/Data submitted to agencies

• Discussions with appraisers, engineers, for the government

• Prior appraisals/valuations

• Costs

U.S. ARMY CORPS and 404 PERMITS

RAPANOS et ux., et al. v. UNITED STATES
certiorari to the united states court of appeals for
the sixth circuit


THE TEAM
• Owner/Operator

• Eminent Domain Attorney

• Appraiser

• Engineer/Hydrologist/Geologist

• Others

THE PART TAKEN


SEVERANCE DAMAGE

―. . .any diminution in value of the remaining property caused by the
taking.‖

Examples of this include:
• DRAINAGE • RE-OPENING MINE PLAN APPROVAL
• LOSS OF PARKING • TRIGGERING GOVERNMENT REVIEW
• RESTRICTED ACCESS • INCREASED COST OF OPERATIONS
• DECREASING SIZE • REDUCED RESERVES
• CHANGE IN USE • PERMITS
• FUNCTIONALITY
• AESTHETICS


California Case


California Case – During Construction


California Case – Near Completion


Creamland Dairy – 2002 Aerial View


Creamland Dairy – 2007 Aerial View


PARK CITY
BEFORE


PARK CITY
AFTER


Lawyer's Guide to Eminent Domain Issues

Recommended

Recommended

More Related Content

Viewers also liked

Viewers also liked (16)

Recently uploaded

Recently uploaded (20)

Lawyer's Guide to Eminent Domain Issues