Here's one we've been meaning to post up for a while. Not because it isn't an important decision, but because other things intervened.
In State of West Virginia ex rel. West Virginia Dep't of Transportation v. Burnside, No. 15-1112 (June 13, 2016), the Supreme Court of Appeals of West Virginia held that under the statutory quick-take scheme, the condemnor has the total discretion to determine the amount of the deposit, an estimate of just compensation. In that case, the DOT took land formerly occupied by a service station, which needed some environmental clean up due to old gas and oil storage tanks buried on the land.
The DOT calculated the deposit supporting the quick-take by adding up the overall value of the land, the severance damages to the remainder, and the value of the fixtures and the temporary construction easement, and then subtracting the cost of the clean up which the DOT would need to do, ending up with a net figure of $417,100.
This didn't satisfy the trial judge. He believed that the deposit should not take into account the $595,000 which the DOT subtracted for environmental remediation, and thus conditioned the transfer of title and possession to the DOT on it depositing $1,012,500. Not happy with that situation, the DOT sought extraordinary appellate relief (the "Burnside" in the caption is the trial judge), and argued that the quick-take statute does not require anything more than "the applicant's ... estimate ... of the fair value of the property." And that means that the condemnor alone -- and not some judge -- has the power to make that estimate. Thus, the DOT's calculation could not be reviewed by the court.
The court paid lip service to the idea that eminent domain statutes are there for the protection of property owners. See slip op. at 10 ("To be sure, the statute is designed to ensure just compensation for the property taken ..." but [and there's always a "but," isn't there?], "it accomplishes that end by virtue of the appointment of qualified commissioners, the preparation of a particularized report based on evidence obtained through the adversary process, trial de novo before a jury, and the opportunity to appeal an adverse verdict.").
But that protection doesn't extend to the "preliminary" objections to the amount of compensation, because the statute "facilitate[s] the complimentary purpose of ensuring that the subject property is efficiently acquired and converted to public use, without imposing unnecessary costs and delays on the sovereign." Slip op. at 11. The state has incentives to get its quick-take deposit correct, because if the eventual result is higher, it will have to pay 10% interest on the difference. (In our experience, the threat of the payment of interest doesn't really influence condemnors.)
The court didn't turn off the switch entirely, however. "Under exceedingly narrow circumstances, an aggrieved property owner may seek to have the tender set aside." Slip op. at 13. Those circumstances include where the trial court determines that an appraisal is defective "on its face." Also if a private condemnor is broke or doesn't have the power to take. In other words,
A single justice dissented. He concluded that the clean up costs only were necessary if you take into account the condemnor's use:
Trampling upon this critical principle of eminent domain law, the majority has sanctioned the deprivation of fair market value to the landowner based upon costs uniquely and solely attendant to the State's intended usage of the condemned property." In the present case, the State is attempting to deprive the innocent landowner of more than half of the land's value. Such a result is manifestly unjust and ultimately threatens the rights of all property owners in the state.
Dissent at 1. He argued that prior landowners didn't have a problem with the old storage tanks, and the West Virginia Department of Environmental Protection didn't have a problem with the two leaks which occurred (and didn't require remediation).