A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
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Transcript of A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
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
©JacksonWhite, P.C. (2012) All Rights Reserved
FY 2016 CONSTRUCTION PROGRAM
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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??
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YES, BUT FEW SUCCEED.
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• 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?
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©JacksonWhite, P.C. (2012) All Rights Reserved
A TAKING MAY BE. . .
• TOTAL OR PARTIAL
• PERMANENT OR TEMPORARY
• REGULATORY
WHAT MAY BE TAKEN?
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• ANY INTEREST IN REAL PROPERTY
• FEE TITLE
• LEASE (LANDLORD/TENANT)
• EASEMENT/LICENSE
• SURFACE/SUBSURFACE
WHAT INTERESTS IN “PROPERTY” MAY BE TAKEN BY EMINENT DOMAIN?
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WHAT ARE NON-COMPENSABLE DAMAGES?
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BUSINESS LOSSESS
The Process
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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?
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• 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?
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• WHAT MAY AN OWNER DO WITH PROPERTY AFTER A PUBLIC PROJECT IS ANNOUNCED, BUT BEFORE A CONDEMNATION LAWSUIT?
• REASONABLE ENHANCEMENTS
• 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
NECESSARY INFORMATION
75TH AVENUE & THE SALT RIVER
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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
VALUATION AND APPRAISAL ISSUES
• 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
POTENTIAL CONCERNS
U.S. ARMY CORPS and 404 PERMITS
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RAPANOS et ux., et al. v. UNITED STATEScertiorari to the united states court of
appeals for the sixth circuit
• Owner/Operator
• Eminent Domain Attorney
• Appraiser
• Engineer/Hydrologist/Geologist
• Others
THE TEAM
THE PART TAKEN
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“. . .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
SEVERANCE DAMAGE
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California Case
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California Case – During Construction
California Case – Near Completion
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Creamland Dairy – 2002 Aerial View
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Creamland Dairy – 2007 Aerial View
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PARK CITYBEFORE
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PARK CITYAFTER
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