Today, on behalf of Owners' Counsel of America, we filed this amicus brief in River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922.
Did you know that when the U.S. Supreme Court began applying the rights in the Bill of Rights to the states (aka "selective incorporation") that it started with the Just Compensation Clause? See Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S. 226 (1897). Was that a sign that the Court believed the right to the "full and perfect equivalent" in value when property is taken "for public use" is more important than other rights in the Bill of Rights? Maybe not, but it is a reminder than a vast majority of eminent domain cases do not involve the Public Use issues that have captured the public's attention in the wake of Kelo v. City of New London, but instead deal with how much compensation is owed to private owners who have been forced to surrender their property to the public. In other words, how compensation is calculated is a big issue. Even though these issues predominate in eminent domain cases, it has been a while since the Court has weighed in on whether compensation is truly "just," the last one being United States v. 50 Acres of Land, 469 U.S. 24 (1984). It's about time it took another.
The cert petition is seeking review of a decision from the New York Supreme Court Appellate Division (if you don't know that the "Supreme Court" is New York's trial court of general jurisdiction, and the "Appellate Division" is the intermediate court of appeals, you apparently have not been watching Law and Order for the last 20 years) that denied a property owner and developer the right to present and have considered evidence about the valuation of land taken in the Lincoln Center area of Manhattan. "Highest and best use" is the general rule of thumb in calculating just compensation, and as you might well imagine, land and development rights in that part of town should be awfully valuable.
The New York court, however, held that that in order to be admissible, the property owner must show the use it claimed is the highest and best use "must be established as reasonably probable and not a 'speculative or hypothetical arrangement in the mind of the claimant.’ ” Pet. App. 2a (emphasis added) (quoting In re Shorefront High School, City of New York, 250 N.E.2d 333, 334 (N.Y. 1969)). The court also required the property owner to
show that it "would bring the project to fruition in the near future." Pet. App. 2a-3a (emphasis added). Our brief argues that an owner whose property is taken need not have any development plans in mind – much less plans that will "come to fruition" in the immediate future – for a court to admit all evidence of a parcel’s potential uses. The brief also addresses the lack of standards for evaluating whether a condemnor deliberately depressed the value of the property by regulations in anticipation of litigation, and reminds the Court that property owners and developers may testify about their property's uses and value. We think this is a good case for the Court to evaluate these issues:
This case is an excellent opportunity for the Court to squarely address three issues in Just Compensation law: each of the rulings by the New York court fall below the floor established by the Fifth Amendment, and this case "presents an important phase of the law of eminent domain" warranting review by this Court. United States v. Petty Motor Co., 327 U.S. 372, 373 (1946).
Br. at 7-8.
The Court's docket entry is here. We'll post the other amicus briefs and the BIO when we receive them.
Brief Amicus Curiae of Owners' Counsel of America, River Center LLC v. Dormitory Auth. of the State of ...
