The eminent domain issue grabbing everyone’s attention these days is the question of whether property can be taken — the Public Use/Kelo issue — and not the issue in play in the vast majority of condemnation cases, just compensation. The question of how much a property owner is entitled to under the U.S. and state constitutions’ “just compensation” clauses when her property is taken does not grab many headlines. Other than than us down-in-the-trenches condemnation lawyers, and property owners who are being jacked by lowball government offers, the issue does not boil the blood.
The latest decision in the long-running odyssey of Bart Didden and the Village of Port Chester, New York illustrates the process. In the Matter of the Application of the Village of Port Chester, 2010 NY Slip Op 50532(U) (Apr. 2, 2010). My Owners’ Counsel of America colleague Michael Rikon represented the property owners.
The highlight of the case was that the Supreme Court, Westchester County, held that the property owners are entitled to $3,062,000.00 in just compensation, plus interest. The lowlight? The government’s “advance payments” for the properties was $975,000, less than one-third of the court’s eventual verdict.
The only thing stunning about that figure is that it is not all that unusual for the government’s initial offer or deposit to be low. Indeed, Professor Gideon Kanner has a regular feature on his Gideon’s Trumpet blog, “Lowball Watch,” detailing, with commentary, the latest examples of similar differences between offer and eventual compensation. Professor Kanner commented on the valuation decision in Lowball Watch – New York. The Eminent Domain Law Blog details the case and the background here.
The Port Chester valuation case only arose after Didden and other property owners lost their earlier challenges to the taking despite egregious facts, including this gem:
The developer, Gregg Wasser of G&S Port Chester, told Didden he’d have to pay $800,000 or give G&S a 50 percent stake in the CVS business. If Didden refused, Mr. Wasser said, he would have Port Chester condemn and seize his property and instead of a CVS he’d put a Walgreens drugstore on the site.
See here and here for more details.
Speaking of just compensation decisions that grab your attention, see this recently filed cert petition on the workings of the “undivided fee” rule, and how the Wisconsin Supreme Court applied the rule to determine that a lease that everyone agreed was worth more than a million dollars was valued at $0 in condemnation.
Thanks to my colleague Dwight Merriam for the heads-up on the Port Chester opinion.