2023 NATIONAL EMINENT DOMAIN UPDATE

AMY BRIGHAM BOULRIS is a shareholder with the Gunster law firm in Florida. Her practice
concentrates on property rights defense litigation state wide at both trial and appellate levels.
She exclusively represents landowners in eminent domain, takings, development exactions, Har-
ris Act, and civil rights contexts. She is an honorary member of the Owners Counsel of America,
longstanding Florida Legal Elite Hall of Fame honoree, and member of the Board of Trustees at the
Pacific Legal Foundation. She has been rated AV Preeminent Attorney, as independently deter-
mined by Martindale-Hubbell (Highest Possible Rating), 2023; The Best Lawyers in America®, Emi-
nent Domain and Condemnation “Lawyer of the Year” in Miami, 2011, 2017, 2023; The Best Lawyers in America®, Eminent
Domain and Condemnation, 2007-23; and The Best Lawyers in America® Business Edition: The Litigation Issue, 2021.

ROBERT H. THOMAS practices in trial and appellate courts nationwide as the Director of Prop-
erty Rights Litigation and a Senior Attorney with the Pacific Legal Foundation. He is currently the
Visiting Chair in Property Rights Law at the William and Mary Law School. He is an elected member
of the American Law Institute and has a popular blog on land use, property, and takings law: www.
inversecondemnation.com.

The authors gratefully acknowledge the assistance of Gunster associate attorney, Teresa Muniz.

PUBLIC USE dissent argued that the “contingent and prospec-

tive” nature of World Heritage designation did not
UNESCO designation enough to support taking justify the exercise of eminent domain.4
In State ex rel. Ohio History Connection v. Moundbuild-
ers Country Club Co., the Ohio Supreme Court held “Take now, decide later” isn’t a public use
that the taking of the Country Club’s lease for the
HBC Victor LLC v. Town of Victor is a classically short
property served a public use.1 The Ohio History
opinion from the New York Supreme Court. It’s so
Connection, a state agency, sought to extinguish
short that we were tempted to simply post the opin-
the Moundbuilders Country Club’s lease on the
ion and let you read it, because it will probably take
Octagon Earthworks land using the power of emi-
you just as long to read our summary, but we’re
nent domain. The agency wanted to convert the
up to the challenge of making our summary even
earthworks into a public park and nominate the
shorter than the opinion, so here goes.5
structures to the World Heritage list as part of the
interconnected Hopewell Ceremonial Earthworks. The town wanted to take property “connected to
The Country Club objected, arguing that the taking an enclosed regional shopping center known as
was not in the best interest of the public as a whole. Eastview Mall[.]”6 Until Covid-19, the property was
occupied by a retail department store, but the store
The Ohio Supreme Court disagreed, holding that
closed permanently in February 2021. The owner
establishing the earthworks as a public park will
tried to get a new tenant but, unsurprisingly, came
“help preserve and ensure perpetual public access
up short.
to one of the most significant landmarks in the state
of Ohio.”2 In a dissenting opinion, Justice Sharon L. Perhaps sensing an opportunity, the Town sought
Kennedy argued that Norwood v. Horney,3 (a case to condemn for redevelopment, but its resolution of
most readers will be familiar with) required that taking did not specify why it wanted the property:
the Country Club’s allegations be resolved by the
trial court, not disposed of by law-and-motion. The

JULY 2023 THE PRACTICAL REAL ESTATE LAWYER | 3

 The proposed Acquisition is required for and Think the Town will have another go at it? If so, think
is in connection with a certain project … con- it’ll draft the resolution the same way (or will it heed
sisting of facilitating the productive reuse and Justice Scalia’s Lucas11 dictum)?
redevelopment of the vacant and underutilized
Proposed Site through municipal and/or eco- Waiver of future claims includes reclaim statute
nomic development projects ... by attracting
and accommodating new tenant(s) and/or end Colton v. Town of Dubois is a good reminder that
user(s).7 when you settle a case, you settle the case.

Even in condemnor-friendly New York, this one Wyoming is one of those jurisdictions that has “I
should raise a red flag. “In its determinations and want it back” provisions, where if property is not
findings, the Town stated that ‘no specific future actually used for a specified number of X years after
uses or actions have been formulated and/or spe- it is acquired by the government, the owner may
cifically identified.’”8 ask for it to be returned. In Wyoming, the term is 10
years:
When you draft your findings like that, condemning
agency, shame on you. (Kudos, however, for your If a public entity acquires property in fee simple
honesty.) title under this chapter but fails to make sub-
stantial use of the property for a period of ten
Pointing to a recent similar case by the Second (10) years, there is a presumption that the prop-
Department, the Appellate Division concluded erty is no longer needed for a public purpose
that “[b]ecause the Town has not indicated what and the previous owner or his successor may
it intends to do with the property, we are unable apply to the court to request that the property
to determine whether ‘the acquisition will serve a be returned to the previous owner or his succes-
public use.’”9 The court rejected the Town’s argu- sor upon repayment of the amount originally
ment that the government can take property for received for the property in the condemnation
redevelopment without a particularized plan. The action. A public entity may rebut the presump-
public use for the taking is determined at the time tion created under this subsection by showing
of the taking, and simply speculating that the tak-
good cause for the delay in using the property.12
ing will produce future public benefits isn’t enough:
“In simple terms, the government cannot take your Back in the day, Craig Colton and the Town of
land and then decide later what to do with it with- Dubois got into a fight over land apparently needed
out running afoul of the Takings Clause.” (or wanted) for the municipal airport. Colton sued
for inverse condemnation, and “and sought to pre-
Further, there was no indication or claim that the
vent the Town from condemning any portion of the
property here was blighted, even under New York’s
property.” 13 After a bench trial, the court rejected
notoriously low standards for blight:
Colton’s arguments and concluded that the Town
To the contrary, the evidence at the public hear- could take 30 acres of property after a determina-
ing established that petitioner has cleaned and tion of compensation.
maintained the premises since the Lord & Taylor
vacancy and continues to pay property taxes at But peace prevailed before the compensation hear-
the assessed value of more than $4,000,000. We ing took place and the parties settled. The Town
do not equate mere vacancy with blight, espe- would pay an agreed-upon amount and would
cially when the vacancy occurs unexpectedly in acquire the 30 acres from Colton. Critically, the
the midst of a global pandemic.10 settlement agreement “contained several terms
releasing the Town from all past, present, and future
Taking invalidated; attorneys’ fees to the owner. claims related to the disputed 30.17 acres.”14 

4 | THE PRACTICAL REAL ESTATE LAWYER JULY 2023

Ten years passed. Apparently, the Town didn’t make to language that waives your rights so broadly). But
use of the property and Colton wanted it back. He don’t be surprised if the other side really insists on
sued, seeking to reclaim it. The trial court granted that language. And that points to another option:
the Town summary judgment and the Wyoming if you want to retain your rights, don’t settle. The
Supreme Court agreed. The court concluded waiver of future rights is just one of those things
Colton waived his statutory rights by executing that parties have to assess the risk of when they are
the settlement agreement, even though, yes, the deciding on fight or flight.
Town acknowledged it had not used the property
for the airport. (This is a true waiver situation—not
PRE-CONDEMNATION PREREQUISITES
the more usual forfeiture by inaction—since Colton
knowingly gave up his right to reclaim.) “Under threat of condemnation”
The court first accepted that the Town acquired
means only a specific threat
Colton’s property in a way that triggered the A Utah statute requires that if a condemnor doesn’t
statute because it was acquired under the threat actually use property it acquired “under a threat of
of condemnation. Next, the court concluded the condemnation,” it must try and sell it back to the
statute was in force at the time of the settlement, (former) owner. The statute defines “threat of con-
and therefore Colton is assumed to have known demnation” as when “an official body of the state or
about it. The court also concluded that Colton a subdivision of the state, having the power of emi-
intended to relinquish his statutory rights because nent domain, has specifically authorized the use of
the agreement unambiguously says so in the eminent domain to acquire the real property.”16 
“Statement of Purpose” and “Release” provisions.
There, the agreement notes the agreement is to So, what does “specifically authorized” mean? In Car-
resolve all claims, including future claims: diff Wales, LLC v. Washington County School District,
the Utah Supreme Court concluded it means any
The stated purpose of the settlement agree- specific threat to take.17 The condemnor must do
ment is to resolve any claims the parties “may something more than indicate it is thinking about
have in the future arising out of or in any way
eminent domain but need not take the final step in
related to the above taking[.]” This purpose
approving an eminent domain lawsuit.
is further reflected in the terms of the settle-
ment agreement ... The release provisions are The school district offered to buy property belonging
broad but nonetheless unequivocal in express- to Cardiff Wales (CW) to build a new high school.
ing Mr. Colton’s intent to waive “any and all” During the negotiations, the district reminded CW
future claims, “related in any way” to the con-
that if a settlement was not reached voluntarily, it
demnation action, which would include any
would institute a condemnation action. With that
claims he had pursuant to Wyo. Stat. Ann.
kind of offer, CW agreed to the sale.
§ 1-26-801(d).15
Flash forward a decade. The district decided it wasn’t
Finally, the court noted that the waiver is in
actually going to use the land and no longer needed
accordance with public policy (an element of
it. Instead of offering it back to CW, the district
waiver under Wyoming law). We like the freedom
instead sold it to a developer. Now hold on, CW
to contract, and we like settlements, the court
concluded. asserted, you acquired the property under threat of
condemnation (we remember your “reminder” that
So, what lessons can we take from this? When you you could just take the property if we didn’t sell),
settle, you settle. Done. Finis. Unless you want to so we have the right of first refusal and we want to
hold on to some rights (in which case you don’t agree exercise that right.

2023 National Eminent Domain Update | 5

 The trial court disagreed that the sale was “under This is a statutory case, so may have limited utility to
threat of condemnation,” and the court of appeals those of you not in Utah. But the overall vibe seems
agreed, holding that “to survive the motion to dis- pretty Goldilocks: not too late, but not too soon,
miss under the theory that [the School District] emphasizing that these things are all about facts,
acquired the Property by threat of condemnation, facts, and facts, and the presumption should be that
Cardiff [Wales] must allege that [the School District] these cases are resolved on proof of those facts, not
voted and approved the use of its eminent domain the law.
power to acquire the Property.”18 “Specific authori-
So maybe the jury should decide. Sounds about
zation” means final vote.
right. 
The Utah Supreme Court disagreed, noting that
the legislature clearly signaled that a “general fear” Condemnor must put owner on actual notice
that the government might take the land if it isn’t In 624 Broadway LLC v. Gary Housing Authority, the
voluntarily sold does not amount to a threat of con- Indiana Supreme Court held that a condemning
demnation (every property owner lives under such a agency must provide the property owner adequate
general fear, no?). However, the court wasn’t willing notice that it would be taking its property as part of
to draw the line as late in the game as the court of a redevelopment project.21
appeals, either:
The Gary Housing Authority (Authority) wanted
Instead, to meet her statutory burden, a land- to redevelop 624 Broadway’s commercial prop-
owner must plead and prove some government erty in downtown Gary into mixed-use residential.
action that indicates the government has autho- The Authority instituted an “administrative taking”
rized the use of its eminent domain authority under Indiana law, which is “an alternative to the
in a way that bespeaks a specific intent to con- ‘traditional’ lawsuit route” that “occurs when an
demn the landowner’s property. 19 authorized governmental body condemns property
and awards damages through resolutions.”22
What does this mean when pleading a right of first
refusal under the statute? “This means that to sur- The administrative taking statute only required
notice to the property owner by publication. And
vive a motion to dismiss, Cardiff Wales needed to
that’s exactly the notice the Authority gave 624
plead that the School District took some sort of
Broadway. “It twice published notice of the reso-
action that transformed its general eminent domain
lution and upcoming meeting in two area news-
power into a specific threat to take Cardiff Wales’s
papers of general circulation.”23 Broadway’s agent
parcel by eminent domain.” Slip op. at 12.20 CW’s
found out about the meeting from a reporter, and
complaint “did not use the words ‘specifically autho-
he appeared at the meeting and spoke. At the meet-
rize’ in its complaint,” but it did allege enough (e.g.,
ing, the Authority confirmed the taking, assessed
the district’s statement that it intended to use con- $75,000 in damages, and set another meeting to
demnation if necessary and CW’s allegation that it consider objections.
sold the property to avoid an eminent domain law-
suit) to infer that the district specifically authorized The owner asked for a postponement of the meet-
the use of eminent domain. ing, but the Authority refused. The owner even sued
(unsuccessfully) to get a restraining order to stop
In other words, it doesn’t take the condemnor for- the meeting so that the owner’s appraiser could
mally adopting a resolution of taking, but on the evaluate the property. With nothing stopping it, the
other hand, a general power to condemn isn’t Authority held the meeting, at which it concluded it
enough either. The answer lies somewhere in could take the property, and awarded the $75,000 in
between. damages. One day after that meeting, the owner’s

6 | THE PRACTICAL REAL ESTATE LAWYER JULY 2023

appraiser inspected the property and issued a report of Fort Wayne, 985 N.E.2d 731, 736 (Ind. 2013),
valuing it at $325,000. but it cannot circumvent the Constitution.
“[W]hen notice is a person’s due, process which
624 Broadway raised a constitutional due process is a mere gesture is not due process.” Mullane,
argument, asserting that the notice provided by the 339 U.S. at 315. Because the Housing Authority
Authority was insufficient. Hold on, the Authority knew how to provide personal notice, its notice
countered, the statute only requires us to publish by publication was a “mere gesture.”25
notice of the taking and our hearing, and there’s
no question we did that. Although the lower courts But wait, isn’t it enough that the owner’s agent
bought that assertion, the Indiana Supreme Court actually knew about the meeting (from a reporter)
didn’t. and showed up? No, the court concluded, “we can-
not say 624 Broadway was not prejudiced: under
Taking property requires due process notice, and our harmless error standard, an error’s ‘probable
that process requires some kind of hearing. The impact’ is not ‘sufficiently minor’ if it did not ‘affect
notice provided must be reasonably calculated to the substantial rights of the parties.’”26 Had the
inform. Yes, the Authority complied with the stat- Authority provided adequate notice, 624 Broadway
ute and published notice, but statutorily compliant might have had an appraisal ready for the meeting
doesn’t mean “constitutionally sound.” The court and not two weeks after. 
noted that “[c]ertainly, a statute can provide more
protection than the Constitution. But when a stat- Having found a problem, the next question was
ute provides less, the government must do more.”24 remedy. The court concluded that the owner was
not entitled to vacate the taking, because the court
Not that notice by publication is always bad. You can was not convinced that it was for a bad purpose.
publish notice where it isn’t possible or practicable Instead, the court remanded the case for a properly
to give other kinds of notice. But if you know where noticed hearing on damages where the Authority
to find someone, or can easily figure that out, then can consider all of the owner’s evidence. That’ll
you have to make an effort. surely change things.

The Housing Authority admittedly knew the Owner denied service of process has
identity and address of 624 Broadway’s regis- standing to set aside taking
tered agent. Indeed, its September 19 damages
In Edgewater Hall Enterprises, LLC v. City of Canton,
resolution included his address. 624 Broadway’s
the City of Canton (City) narrowly escaped a find-
articles of organization, filed with the Indiana
ing of bad faith conduct for knowingly excluding an
Secretary of State, listed its registered agent,
owner of record from service of process (thanks to a
his address, and an email address for service.
favorable appellate review standard and a shred of
Further, the Housing Authority demonstrated
evidence), but the excluded landowner was none-
its ability to successfully communicate with theless allowed to pursue a set aside of the decla-
624 Broadway during its eminent domain law- ration of taking entered without opportunity to be
suit. See L.D., 938 N.E.2d at 671 (finding notice heard.27 Moral of the story for condemnor counsel,
by publication insufficient when a party “had don’t try this at home, you might not get as lucky.
successfully given notice” in a previous case but
“made no attempt to do so” in the instant case). The City sought to take two easements over an
Yet once it transitioned to an administrative tak- approximate 11-acre tract with river frontage:
ing, it apparently became incapable of sending (i) an environmental mitigation easement along the
a letter or email to 624 Broadway. An adminis- riverbank which had been granted by Edgewater’s
trative taking may be a “streamlined procedure predecessor-in-title to prevent development of
for taking private property,” Util. Ctr., Inc. v. City the river frontage; and (ii) an additional permanent

2023 National Eminent Domain Update | 7

 easement over that area to install a gravity sewer that the City had not acted in bad faith and that the
main and pedestrian path. It also sought to take a alleged technical deficiencies in the declaration of
temporary access easement to cross the balance of taking could be cured by amendment rather than
Edgewater’s property during construction of the dismissal. Edgewater brought interlocutory appeals
project along the riverbank. on both cases, which were consolidated.

The City’s own appraiser estimated total The Georgia Court of Appeals affirmed the trial
compensation for the permanent and temporary court’s ruling that the City’s actions did not rise to
easements at $57,000. Though the City provided the level of bad faith because there was at least
a copy of its appraisal to Edgewater, it offered some evidence in the record to support the trial
a fraction of the appraised value ($10,000) to court’s conclusion. Georgia law allows annulment
Edgewater because of settlements it had been able of declaration of takings in “situations of fraud or
to achieve in that range with neighboring owners. bad faith, the abuse or misuse of condemnation
Edgewater and the City negotiated for over a year powers,”28 but the courts have imposed a high
regarding the compensation for the easements burden of proof on the challenger to show con-
before impasse. scious wrongdoing motivated by improper interest,
ill will, or fraud. A trial court’s finding on the issue of
Rather than file a petition to acquire the easements bad faith is to be upheld if there is any evidence to
and allow the compensation dispute to resolve in support it.29
due course, the City first filed a separate petition to
acquire only the permanent sewer main/pedestrian What was the “any evidence” upon which the trial
path easement without serving Edgewater. The only court relied in finding no willful bad faith? The City
parties served were Edgewater’s predecessor-in-title had obtained a (clearly erroneous) title report which
and the bank from which Edgewater acquired the concluded that Edgewater did not own the land
parent tract (subject to the pre-existing mitigation underlying the original easement area because the
easement) after foreclosure. The Court proceeded easement was lessed out in the deed. The appeals
to enter an order of taking on the City’s good faith court soundly rejected the conclusion of the title
deposit of only $3,800. report, reasoning that the deed described the entire
11-acre parcel and only lessed out mitigation ease-
Six weeks later, the City filed a second action to ment interest, not the easement area or underlying
acquire the associated temporary construction fee. Accordingly, Edgewater owned the fee under-
easement and served Edgewater with notice of only lying the riverbank over which the City sought to
that case. Over Edgewater’s objections to the taking impose a new permanent easement for public facili-
on the grounds of bad faith and other technical ties, and thus had standing to set aside a declaration
objections to the City’s petition (e.g., alleged of taking for lack of notice.30
insufficient description of the take area and duration
of the easement), the trial court granted the taking. So, while the appeals court affirmed the City’s
narrow escape from a finding of bad faith in its
Edgewater filed petitions to set aside both tactical bifurcation and sequencing of cases without
declarations of taking, among other reasons, for appropriate notice to Edgewater, it reversed the
bad faith dealing by the City. The trial court rejected lower court’s holding that Edgewater had no
both petitions. As to the permanent easement standing to set aside the taking.
taking, the court concluded Edgewater did not own
the riverbank area subject to the original mitigation Now, we all know that the City could have filed a
easement and therefore lacked standing to challenge single case with two parcels and listed the owners
the declaration of taking. As for the temporary it believed to be of record as to each parcel so that
construction easement case, the trial court held Edgewater could have a fair opportunity to be heard

8 | THE PRACTICAL REAL ESTATE LAWYER JULY 2023

on the title issue. Not only would that have been public use is not a matter of judicial cognizance but
appropriate due process given the City’s knowledge one for the determination of the legislative branch
of Edgewater’s claimed ownership interest, but it of the government”?34 What gives?
would have prevented two appeals and remand
proceedings to consider Edgewater’s challenge to In Lafayette City-Parish Consolidated Gov’t v. Bendel
the permanent easement taking. P’ship, the local government brought an expropria-
tion action (that’s eminent domain or condemnation
to you non-Louisiana lawyers), seeking to take prop-
Hospital parking lot not an erty to construct four detention pods to improve
authorized reason to take drainage.35 The owner objected, challenging the
Unsurprisingly there isn’t a lot in the majority opin- public use and necessity of the taking (the govern-
ion in Bowers Dev. LLC v. Oneida Cnty. Indus, Dev. ment was taking more property than it needed).
Agency, (this is from the New York courts after all, The trial court agreed with the owner and dismissed
which don’t seem to write long opinions), but we’re the action. The Louisiana Court of Appeal affirmed.
including it so you can compare the majority with
the dissent.31 How so, you may ask, given the low bar for necessity
where the courts for the most part wash their hands
The majority held that the agency’s power to take of the issue?
is limited by the terms of the delegation of eminent
domain power (for “commercial” facilities), and here, This challenge, as you might have guessed, was
eminent domain is being used to take property for made under Louisiana law. And there, the standards
are a bit more realistic. Louisiana law does recog-
a parking lot for a hospital not for a surface lot. That
nize that the extent and location of the taking are
isn’t a “commercial” use.32
within the discretion of the condemning agency
Not so fast, said the dissent. Courts are supposed to and its decision is entitled to a presumption the
defer to an agency’s statements about why it is tak- taking satisfies a public need or interest. However,
ing property, and to an agency’s interpretation of Louisiana law also recognizes that if the owner car-
what ambiguous statutory terms such as “commer- ries its burden of showing the location was selected
cial” mean.33 The dissent found that the agency’s in bad faith or so capriciously or arbitrarily that the
definition was neither irrational nor unreasonable selection “was without an adequate determining
principle,” then a reviewing court may conclude the
and thus should have been given deference.
condemnor abused that discretion.36
Whose vision do you like more?
That’s what happened here. Although the mere
availability of alternative sites to place the drain-
NECESSITY age project “is not, by itself, an indication that the
expropriator has acted arbitrarily or capriciously,”
Consideration of other sites
the appeal court reviewed the trial court’s findings
Check this out—a decision upholding a necessity that looked at things like “alternate route[s], costs,
challenge to a taking. environmental factors, long-range area planning,
and safety considerations.”37
Necessity, you say? What’s this? Aren’t necessity chal-
lenges subject to an even more deferential judi- In the end, the court of appeal reviewed the evi-
cial standard of review than the rational basis test dence submitted by the parties—which included
applied to declarations of public use? Didn’t the testimony by one witness that “he had never seen a
US Supreme Court in Adirondack Ry. Co. v. New York case where a property that has never been flooded
say that “[t]he general rule is that the necessity or was converted to purposely make it flood because
expediency of appropriating particular property for usually lower elevated property would be used so

2023 National Eminent Domain Update | 9

 that so much excavation would not be necessary,”— easement, “and instead, through its resolution, del-
and agreed that the owner carried its burden: egated to the officers, engineers, and other agents
of the company the authority to acquire individual
In this case, the testimony and evidence make easements to complete the project.”42
clear that no alternate routes were considered.
The total cost of the project is unknown. Envi- Therein lay the issue: the owner argued that the
ronmental factors and long range area planning term “appropriation” in the statute is the trigger to
were not considered. None of the witnesses tes- the creation of either a rebuttable (or an irrebut-
tifying on behalf of LCG indicated that safety table) presumption in favor of necessity, requir-
considerations were made regarding the gas ing an individualized determination, not a conclu-
line that runs through the property. Based on sion about whether a project broadly is necessary.
all of these factors, we cannot say that the trial In other words, easement-by-easement, and not
court was manifestly erroneous in finding that project-as-a-whole.
LCG acted arbitrarily and capriciously.38
The trial court rejected the argument, but the court
Now if only other courts would look at necessity the of appeal reversed. After which, the power company
same way. sought, and the Ohio Supreme Court granted,
discretionary review.
Necessity is judged by property
taken, not overall project The court concluded that “appropriation” was not
meant broadly to mean the project or the overall
In Ohio Power Co. v. Burns, the Ohio Supreme Court
declined to apply a statutory presumption of neces- taking, but each condemned easement. The court
sity to the power company’s efforts to use eminent noted that “[t]he property rights of an individual are
domain to expand the scope of several existing fundamental rights,” and that judicial review of tak-
utility easements to upgrade electric transmission ings ensures that “no more [is taken] than that nec-
lines.39 Although the case turned on the interpreta- essary to promote the public use.”43
tion of the term “appropriation” in the Ohio statute,
Paragraphs 23 through 28 lay out the reasons why
it has some lessons for those of us not in the Buck-
appropriation was meant narrowly, and you can
eye State.
read that part if you are interested.
In the absence of three statutory presumptions that
a taking is necessary, the general rule in Ohio is that Those of us not in Ohio will want to pick it back up
the condemnor bears the burden of proving neces- at paragraph 29, where the court rejected the power
sity by a preponderance of the evidence. Here, “[t] company’s “doing this individually and seeking neces-
he landowners opposed the easements in general, sity determinations from the Power Board for each
alleging that the appropriations were overly broad easement would be too much trouble” argument.
and unnecessary, and they challenged the need for
First, the court held that nothing requires the com-
several of the easement terms specifically, including
the need for distribution lines.”40 pany to seek the Board’s review. It only needs to do
so if it wants to take advantage of the statutory pre-
The trial court considered testimony and other evi- sumptions.44 Second, inconvenience is no excuse:
dence submitted by the power company to show “Simply because it may be inconvenient or tedious
the project was necessary, including evidence that for Ohio Power to obtain the required resolutions or
the Ohio Power Board adopted a resolution “rec- approvals for each appropriation to be entitled to
ognizing the necessity of acquiring easements in a presumption under R.C. 163.09(B)(1)(a) or (c) does
connection with the project.”41 But the evidence not mean that such an interpretation is unreason-
showed the board had not reviewed any specific able or absurd.”45

10 | THE PRACTICAL REAL ESTATE LAWYER JULY 2023

Although the court concluded there was no need for The Commonwealth’s petition (“perhaps the largest
another necessity hearing, it sent the case back down and most consequential public bankruptcy in the
“to the trial court to make the specific findings con- nation’s history”) sought relief for “sovereign debt ...
cerning the challenged easement terms consistent under Title III of the Puerto Rico Oversight, Manage-
with the presumption set forth in R.C. 163.09(B)(1)(b).”46 ment, and Economic Stability Act.”51 The Common-
wealth’s reorganization plan proposed to treat the
And that’s a good way to remember this case: neces- claims of the property owners as general unsecured
sity isn’t always a belief that the “condemnor knows debt, payable “at a pro-rata share of the overall
best.” recovery for general unsecured creditors.”52 In other
words, likely pennies on the dollar, if that. 
SELF-EXECUTING JUST COMPENSATION CLAUSE The property owners objected. Hold on, our claims
are not plain-old unsecured debt because the
Just compensation claims can’t
Constitution says we get just (full) compensation.
be set aside in bankruptcy47 Thus, a claim for compensation can’t be wiped out
Several years ago, a divided panel of the Ninth Cir- in bankruptcy. Confirming the plan would leave us
cuit held there’s nothing particularly special about holding the bag, and the court can’t confirm the
an unresolved takings claim for just compensa- plan with our claims listed as unsecured debt. 
tion that sets it apart from other creditor claims in
a government bankruptcy.48 The majority held that The Title III court agreed, and “directed the Board
to modify the plan of adjustment to provide for full
owners who assert a takings claim against a debtor
payment of any valid eminent domain and inverse
government—but who have not been compen-
condemnation claims if the Board wished to make
sated—before the bankruptcy are just unsecured
the plan confirmable.”53 The Board did so (while
creditors who must “share[] the pain” of the govern-
reserving its right to appeal, which it eventually did).
ment going broke and sloughing off debt, even if it
means that as a result the owner has had its prop- The First Circuit started off by noting that the
erty taken without just compensation. “appeal raises important questions about the inter-
play between the power to equitably restructure
Next up, Round Two. In In re Financial Oversight & debts in bankruptcy and the Constitution’s require-
Management Board for Puerto Rico v. Cooperative de ment that just compensation be paid whenever the
Ahorro y Credito Abraham Rosa, the First Circuit went government takes private property for public use.”54
the other way.49 Let’s get to the holding first:

Here’s the setup. Puerto Rico property owners had [O]therwise valid Fifth Amendment takings
claims for just compensation against the Common- claims arising prepetition cannot be discharged
wealth. One set of owners was (allegedly) owed in Title III bankruptcy proceedings without pay-
compensation for the straight-up eminent domain- ment of just compensation.55
ing of their land by quick-take; they claimed the
And by “just” compensation, the court meant what-
deposits didn’t cover the actual amount of com-
ever full compensation is owed to the owners. How
pensation. The other group of owners had inverse
did the court reach this result? Read on.
claims. The court noted that “[f]or purposes of this
appeal, all parties agree that the Commonwealth ... First, the court rejected the federal government’s
took private property from at least some of the tak- argument that this isn’t a constitutional right versus
ings claimants before petitioning for [bankruptcy].”50 bankruptcy power issue at all, but rather an exercise
That agreement would have consequences in the of equitable powers. No, the court concluded, “we
court’s later analysis, so remember this point. read the Title III court’s ruling to say precisely what

2023 National Eminent Domain Update | 11

 it appears to say: that discharging valid, prepeti- The court next rejected the contention that a Fifth
tion takings claims for less than just compensation Amendment claim for compensation is no different
would violate the Fifth Amendment and render a “than a claim for money damages for any other kind
plan providing for such discharge unconfirmable of constitutional violation” that can be adjusted in
under PROMESA.”56 bankruptcy.64 Relying on the “language and nature
of the Takings Clause,” the First Circuit held that just
Next, having rejected the federal government’s invi- compensation is not simply a monetary remedy for
tation to avoid the constitutional question, the court a constitutional violation but “serves also as a struc-
concluded that “the Fifth Amendment precludes tural limitation on the government’s very authority
the impairment or discharge of prepetition claims to take private property for public use.”65 Thus, the
for just compensation in Title III bankruptcy.”57 Can court concluded, “payment of just compensation [is]
bankrupt governments “eliminate their obligation to unlike most other instances in which the government
pay just compensation and instead pay only reduced engages in a constitutional violation and is required
amounts based on a formula applicable to most to remedy that violation by paying money.”66
creditors[?]”58 The court held no.
The court expressly rejected the Ninth Circuit’s rea-
First, “the Supreme Court has been very clear: the soning in the Stockton case. Instead, the First Circuit
bankruptcy laws are subordinate to the Takings found “the dissenting opinion of Judge Friedland in
Clause.”59 Second, the court rejected the Common- that case to be more persuasive.”67
wealth’s argument that because the owners’ real
property had already been taken by the Common- Here’s how the First Circuit wrapped up:
wealth at the time of bankruptcy, the only “prop-
erty” possessed by the owners were unsecured Reduced to its nub, the issue we decide is rather
claims not protected by the Fifth Amendment. simple. The Fifth Amendment provides that if
the government takes private property, it must
The Commonwealth relied on Knick v. Twp. of Scott60 pay just compensation. Because the prior plan
for that argument. Yes, you read that right. Because proposed by the Board rejected any obligation
the right to compensation arises at the time of the by the Commonwealth to pay just compensa-
taking, its theory goes, the claim doesn’t arise later tion, the Title III court properly found that the
when the government denies compensation. The debtor was prohibited by law from carrying out
Commonwealth asserted, therefore, that compen- the plan as proposed.68
sation is “untethered from the substantive Takings
Clause violation itself.”61 Naturally, given our view that Stockton was ever-so-
wrong, we feel validated by the First Circuit here.
The First Circuit rightly held that Knick does not “cast So, remember that part-and-parcel of the power to
doubt on the Fifth Amendment’s requirement that take property is the corresponding obligation to,
just compensation be paid.”62 And here’s the critical you know, actually pay for it. All of it. And anything
part: that interferes with that right, whether it is, as here,
a Congressional bankruptcy statute, a state statute,
Recognizing that the “right to full compensa-
or anything else must yield to the just compensa-
tion arises at the time of the taking,” does not
tion imperative.
imply that the subsequent denial of that com-
pensation does not also raise Fifth Amendment
concerns. We decline to read Knick as changing What if a condemnor doesn’t pay?69
the Fifth Amendment right to receive just com- What will a court do when a condemnor is ordered
pensation into a mere monetary obligation that to pay (the property owner has a judgment in hand),
may be dispensed with by statute.63 but the condemnor says “no thanks”?

12 | THE PRACTICAL REAL ESTATE LAWYER JULY 2023

The latest incarnation is the Fifth Circuit’s opin- when it feels like it. Instead, it requires the Sewerage
ion in Ariyan, Inc. v. Sewerage & Water Board of New Board to pay the court ordered just compensation
Orleans.70 There, a group of property owners suc- without ‘unreasonable delay.’”
cessfully brought takings claims under Louisiana
law against the Sewerage and Water Board after its We continue to think that is the heart of the issue.
flood control project caused “property damage and Instead of a blanket rule that just compensation
economic loss.” In the various cases, verdicts were judgments are not property protected by the Fifth
rendered, and judgments were issued from 2018 and Fourteenth Amendments, this claim should be
through 2020. resolved on the factual merits of whether the delay
in payment is unreasonable—an issue that cannot
Well, you know what is supposed to happen next. be determined by a categorical “no liability” rule
Judgment debtors are supposed to pay up, or else in a motion to dismiss. After all, are there not some
the judgment creditor may satisfy the judgment by circumstances in which the delay in providing just
other means. compensation is unreasonable and therefore not
just compensation at all? Yes, they may get compen-
But what happens when the government doesn’t sation somewhere down the road if the government
pay up? There’s not much a property owner can wants to provide it and actually gets around to ask-
do if the governmental debtor doesn’t lift a finger. ing the legislature for the money.
So even though the government does not enjoy
sovereign immunity from takings liability, it does Under the Fifth Circuit’s categorical rationale, how-
enjoy it when it comes to, you know, actually paying ever, the constitutional requirement of just compen-
just compensation. sation is merely a suggestion. After all, the property
owners here have undoubtedly had their property
Plaintiffs here filed a new suit, arguing that the city’s
taken but have not been provided just compensa-
refusal to comply with the state court judgments
tion. The Fifth Amendment provides that “nor shall
gave rise to a second takings claim.71 The district
private property be taken for public use, without
court sympathized with the plaintiffs but dismissed
just compensation,” not that it shall not be taken
their claim, noting that “centuries of precedent”
without an IOU.
held that a state’s failure to pay a debt is not a con-
stitutional violation.72
PROPERTY TAKEN
The Fifth Circuit agreed, citing Folsom v. City of
New Orleans, in which the Supreme Court held It’s not an “easement” when condemnor
that a city’s inability to pay state court judgments takes everything permanently
for property damage did not amount to a depriva- The Cass County Water Resource District in North
tion of property in violation of due process rights Dakota wanted to acquire the Sauvageaus’ property
because the property owners still had “an existing for a flood control project (i.e., flooding the property,
liability against the city.”73 We guess this isn’t sur- removing all trees and vegetation, putting the land
prising given the Fifth Circuit’s read of Folsom, plus underwater permanently, cutting off the public
the fact that the same court rejected a similar claim access road, and removing the Sauvageau home).
just a couple of years ago.
The District offered to buy the fee interest from the
Before we proceed, a disclosure: we (along with Sauvageaus for the appraised value of $460,000.
our law firm colleague Kady Valois) filed an amicus The Sauvageaus declined. So the District offered
brief in support of the property owner, arguing that $460,000 for a permanent easement. Also declined.
“[t]he Takings Clause does not permit the Sewerage
Board to take property and hand the owner an IOU Next up, eminent domain, with the District seeking
the Board might pay sometime in the future if and a “permanent right of way easement” by quick take.

2023 National Eminent Domain Update | 13

 We’re taking it now, so you have a few months to In 1978, the Snows’ predecessor-in-title granted the
get out of your home and get off the land. The Town of Calumet a temporary easement to maintain
Sauvageaus objected. You might be able to take our sewer lines which expired six months after the Snows
property for a flood control project, but under the purchased the property in 2010. However, the Town
North Dakota Constitution, quick take is reserved for didn’t cease its use of the property after the tempo-
acquisitions of “rights of way.” rary easement expired. Flash forward seven more
years, and the Town asked the Snows to grant it per-
But wait, the District countered, a permanent petual easements for its continued use. The Snows
easement is a right of way—it’s right there in the asked for compensation, but the Town said no.
quick take petition. The Sauvageaus responded
that the District might call it an “easement,” but, in The Snows filed a lawsuit for trespass and inverse
reality, the District was seeking to acquire the entire condemnation in state court, with the Town coun-
property (i.e., possession “upon, over, in, under, terclaiming with a quiet title claim asserting it had
across, and through” their land). acquired a perpetual easement by prescription. Cross
motions for summary judgment flew: the Snows
In Sauvageau v. Bailey, the North Dakota Supreme
won the prescription claim (the prescription period
Court agreed with the owners and held that what
is 15 years in Oklahoma), while the Town won the
the District called a “right of way” was actually a fee
trespass claim. The inverse condemnation claim was
simple interest and, thus, outside the scope of the
dismissed because the claim belonged to the former
quick take statute.74
owners who had consented to the Town’s invasion of
On the basis of the pleadings and the facts in the the property and, thus, the Snows lacked standing.
record, as a matter of law the District is taking
The Oklahoma Supreme Court reversed, conclud-
much more than an easement or right of way
ing that the Snows had standing to bring an inverse
in the Sauvageaus’ property. The District is not
claim. While acknowledging the “general rule” that
acquiring a strip or a parcel of the Sauvageaus’
“the right of inverse condemnation belongs to the
property for a right of way. The District intends
owner at the time of the taking,”78 the court held the
to close the public road, remove all structures
inverse claim wasn’t based on the original physical
from the property, engage in disturbance of
incursion (which was indeed permissive), but on the
the surface and subsurface, and inundate the
Town’s continued use of the Snow land even after
property with water. The District is taking the
that permission expired.79
entire property for full value while leaving the
Sauvageaus with only a reverter interest with
Takings claims are not limited to one per property,
no value.75
and “[m]ore than one taking can occur involving a
Thus, no quick take. “By labeling the interest in the single piece of property.”80 Thus, the fact that the
Sauvageaus’ property as a ‘permanent right of way Town had installed the sewer lines with the prior
easement,’ the District is attempting to evade the owners’ permission was not relevant to whether
requirements and property owner protections of the Town’s continuing use of the property after the
[the straight (slow) take process].”76 expired permission was a taking. There’s a differ-
ence, after all, between a temporary easement and
a perpetual easement, and an owner is within her
Continued use of expired easement
rights to tell third-party users of her property that
creates second taking
“you can use it for only a certain amount of time
The Oklahoma Supreme Court’s decision in Snow v. after which your possession becomes adverse to
Town of Calumet clarifies who can bring an inverse me.”
condemnation claim and what such a claim should
allege.77 Reversed and remanded for trial.

14 | THE PRACTICAL REAL ESTATE LAWYER JULY 2023

We included this one because of its relation to the development, was designated as wetlands. The
Covid-19 eviction moratoria. Most of the takings evidence before the trial court established that
challenges raised by landlords have gone nowhere the wetlands designation caused an 84 percent
because the courts have largely viewed the issue diminution in market value and effectively
in terms of the right to exclude. Ah ha!, the courts prohibited any development.
exclaim, you landlords invited these now-nonpay-
ing tenants to possess your properties, so you can’t The court rejected the City of New York’s (City) argu-
say that moratoria allowing them to remain rent- ment on appeal that the incremental increase rule
free has taken your right to exclude. had been implicitly overruled and affirmed that the
record evidence of diminution in value and devel-
But we think the analysis should be more like the
opment implications supported a finding of rea-
one applied by the Oklahoma Supreme Court. Yes,
property owners may have initially invited tenants sonable probability that the wetland regulations
to possess and occupy their properties, but that per- would be found to constitute a regulatory taking.82
mission was subject to two conditions: (i) the con- But the appeals court also upheld the trial court’s
tinuing payment of rent; and (ii) the expiration of the adoption of the City’s appraisal methodology which
original permission after a certain time (the expira- substantially discounted for the time, cost, and risk
tion of the lease, for example). So it isn’t so much the associated with pursuit of a regulatory takings chal-
right to exclude that is being interfered with, but lenge. The City’s appraiser calculated the differ-
some other right (e.g., the right to recover property, ence between the unregulated and regulated value
the right to re-possess it, or maybe a “reverter”).  (identifying the increment) but then deducted the
“cost of deregulation” associated with pursuit of a
VALUATION takings claim, and then further discounted for risk
and the present value of money.83
Reasonable probability of a successful
regulatory taking challenge Notably, the appellate court also affirmed the pro-
In In the Matter of New Creek Bluebelt, Phase 4, the priety of the City appraiser’s reliance on the predi-
New York Appellate Division upheld a trial court’s cate opinion of the City’s legal expert in estimating
award of $699,000 for the taking of 21,000 square the time and cost of a legal challenge to the regula-
feet of residentially-zoned land near the eastern tions. It also upheld the trial court’s factual finding
shore of Staten Island for a storm water manage- that a regulatory takings challenge would take three
ment project.81 The landowner appealed from this and a half years at a cost of $350,000 (in addition
award on grounds that the court had not properly to other “extraordinary costs”) as being within the
applied the “reasonable probability incremental range of expert testimony.84
increase rule” which allows a condemnee to con-
tend for an increment of compensation above the So, is this really just or full compensation? Does a
market value of land as regulated if there is a prob- discount of this kind fail to make the owner whole
ability that the regulations constituted a regulatory where the reason for time, cost, and risk was poten-
taking.
tially a result of project influence? The opinion does
not elaborate on the background of the wetlands
Theoretically, this type of compensation increment
represents the premium a knowledgeable buyer regulation and whether it was a precursor to the
would be willing to pay for a potential change to a Bluebelt project. That might be a meaningful dis-
more valuable use (similar to the well-settled rule tinction from probability of zoning cases where the
in most jurisdictions that evidence of a probable time, cost, and risk of pursuit are not a potential
rezoning is admissible at a compensation trial). Here, product of project influence. Good questions to ask
the subject property, though zoned for residential in these probability-driven compensation cases.

2023 National Eminent Domain Update | 15

 Adjustments to comparable sales to the common comparable sale price, the trial court
entered awards higher than the County’s appraisals.
Another valuation case out of the New York Appel-
late Division, Chynn v. Cnty. of Suffolk, offers some The appellate decision is an exercise in tweaking the
interesting discussion about adjustments to compa- lower court tweaks, but some aspects of the discus-
rable sales.85 sion are noteworthy. First, the appeals court found
error in the trial court’s adoption of the landowner’s
Here the condemnor, County of Suffolk, challenged
three percent upward time adjustment because
awards of $1.75 million and $1.83 million for two
while the appraiser testified that his review of the
oceanfront homes in the Bay Park neighborhood
“market conditions in the area” showed the market
of Fire Island acquired for barrier island beach and
had been increasing during the period between
dune restoration in the aftermath of Hurricane
the time of the comparable sale and the date of
Sandy. The appeals court (which reasoned it had vir-
taking, he had also admitted to not having any
tually as much say in determining compensation as
data or other evidence to support the amount of
the trial court because there had been a non-jury
adjustment.88 In connection with time adjustment,
trial) tinkered with most of the adjustments that had
been made by the parties’ appraisers, resulting in the appellate court also rejected the condemnor’s
net reductions in the compensation awarded for the downward market conditions adjustment because
homes to $1.578 and $1.646 million, respectively.86 it was based on a sales survey published by a local
realtor which covered Nassau and Suffolk counties
At the consolidated compensation trial (the home- for a 10-year period. The appeals court reasoned
owners had retained the same appraiser), the reliance on this survey was improper because the
appraisers all agreed that the highest and best use condemnor’s appraiser conceded that he did not
was for continued use of the single-family ocean- know how many homes on Fire Island were included
front homes. They also all used the comparable sales in the survey, that there was no way to determine
approach. As in most valuation trials, that was the how the mean and median values reported in the
extent of agreement. From there the expert testi- survey had been calculated, and there was no data
mony diverged in selection of sales and adjustments to support his opinion that housing on Fire Island
to selected comps. The owners’ appraiser adjusted was similar to that throughout those two counties
for location and view but also applied upward during the study period.89
adjustments for time (increasing market conditions),
for condemnation blight (because the announce- Second, the appeals court found error in the trial
ment of the acquisition project had chilled the mar- court’s application of any condemnation blight
ket on Fire Island). The County’s appraiser also made adjustment because, under New York precedent,
adjustments for location, different characteristics of mere announcement of impending condemna-
homes, and time of sale. The difference of opinions tion does not itself justify disregard of condemna-
was roughly between $1.5 and $2 million.87 tion blight in establishing compensation. Under
New York precedent, additional evidence of other
After hearing the evidence, the trial court noted that acts which “may be translated into an exercise of
there was one common comparable sale among dominion and control” is required.90 While infor-
the array of sales utilized by the opposing apprais- mation about the restoration project and related
ers and proceeded to make adjustments to this one condemnations “percolated through the Fire Island
common comp. The trial court adopted the land- community,” the condemnee homeowners had not
owners’ upward adjustment for time and half of introduced evidence of any affirmative conduct by
the adjustment for condemnation blight. It applied the County that unreasonably interfered or further
adjustment for the comp’s superior location but depressed the value of the properties.”91 (Note, this
inferior ocean view and differences in the quality of is not the standard in other states where announce-
the decks. Based on all the tweaking of adjustments ment may be enough or create a presumption.)

16 | THE PRACTICAL REAL ESTATE LAWYER JULY 2023

 Recent purchase price is of “highest zoned area. While the landowner had obtained a spe-
rank” in determining compensation cial exception permitting parking in the first 50 feet
of that area, further expansion would require a use
In J. Nazzaro P’ship, L.P. v. State, the New York Appel-
variance and the owner presented no evidence of
late Courts offered another nuance to ponder.92 This
being able to meet the legal standards for that under
case involved the partial taking of co-joined lots
the town code.95 The appeals court also noted that
purchased by the condemnee in 2010 for $1 mil-
there was insufficient evidence that doubling the
lion. One portion of the co-joined lots was zoned for
square footage of the building was physically or eco-
neighborhood business and the other for residen-
nomically feasible and that the landowner’s appraisal
tial, though residential use is prohibited until 2060
approach strayed too far into a lost profits zone.
because a gas station formerly operated on the site.
The appeals court went further, holding that the
In 2019, the state road department condemned
“relatively recent” purchase price of the subject
about 7.6 percent of the parent tract for road
property—nine years before—was evidence of the
improvements. The landowner claimed $1.7 million “highest rank” in determining the value of the prop-
in severance damages on the basis of a before value erty.96 The court rejected the landowner’s argument
of $5.6 million and after value of $3.9 million. By the that the purchase price was “abnormal” because
date of taking, triple net ground lease tenant, Chase of environmental contamination, noting that the
Bank, had constructed a new 4,000 square foot, record had established the prior owner’s remedia-
one-story branch bank building and was paying tion efforts. Details!
$225,000 annually with increases every five years.

The landowner’s appraiser opined that the highest Exclusion of subdivision approach
and best use of the parent tract was for an 8,000 and most of expert’s comps
square foot (two-story) building and use of the The Colorado Appellate Court decision in CORE Elec.
restricted area for additional parking. She utilized an Coop. v. Freund Investments, LLC presents a caution-
income capitalization approach that included future ary tale about the use of a “development approach”
income from the hypothetical addition of a second to valuation and the sound practice of verifying
story and parking and concluded that value of the comparable sales.97
property was $5.6 million before the taking and $3.9
million after the taking.93 In upholding an $83,000 jury award for the taking
of a non-exclusive powerline easement, the appeals
The state’s appraiser applied an 80 percent value court: (i) affirmed the lower court’s exclusion of the
discount to the residentially zoned portion because subdivision development methodology relied upon
of the residential restriction through 2060 (perhaps by the condemnee’s appraiser; and (ii) held that
without regard for potential non-residential uses). the exclusion of six out of seven of the appraiser’s
In any event, the trial court rejected this discount comps, was improper but harmless.
because the state’s appraiser did not provide any evi-
dence supporting the amount of this reduction. The The easement encumbered 26 acres out of a 2,722-
trial court otherwise adopted the state’s valuation acre parent tract in agricultural use. The power com-
and awarded $71,000 for severance damages to the pany’s appraiser found no severance damages and
parent tract, finding that the landowner’s appraiser discounted the value of the easement take area by
had utilized an impermissible methodology.94 50 percent because it fell within what would be the
setback for area for residential development. Prior
The Appellate Division affirmed. In also rejecting the to trial, the parties had stipulated that the high-
landowner’s appraisal, it pointed out there was insuf- est and best use of the parent tract was to divide
ficient evidence of probability of obtaining a use vari- the property into 35- to 40-acre residential lots for
ance to allow additional parking on the residentially future sale.

2023 National Eminent Domain Update | 17

 The condemnee’s appraiser employed two method- under the hearsay exceptions for public records.
ologies: (i) a subdivision development methodology Though the appellate court ultimately agreed that
which estimates retail sale value based on a hypo- the sales were independently admissible as public
thetical subdivision of the property discounted for records, it also held that their exclusion was harm-
time and cost of development, etc.; and (ii) a com- less error.100
parable sales approach based on seven comparable
sales, only one of which he had personally verified.98 In response to the owner’s lament that this exclu-
In addition to excluding the development approach sion left the owner’s case dependent on a solitary
as speculative and impermissible under Colorado sale and prejudicially diluted the credibility of its
law, the trial court excluded six of the seven compa- expert, the court unsympathetically reasoned that
rable sales for failure to verify them, leaving a single the jury appeared to have rejected his percentage of
comparable sale. The landowner (whether or not loss theory which would not have been aided by the
planned before trial) also called an appraiser that excluded comparable sales, noting that the power
had originally been hired by the condemnor to tes- company’s appraiser’s unit value was actually high-
tify. While his testimony may have been helpful on er.101 The court also suggested that not all credibility
the value of the part taken, he had found no sever- was lost by virtue of the fact that the jury awarded
ance damages. some severance damages when the power com-
pany’s retained appraisers (one of whom the land-
On appeal the landowner argued that exclusion of owner called as a witness) opined that there were
its subdivision approach to value was erroneous. no severance damages. Where the landowners’
The appeals court disagreed because the subject damages estimate was in the $200,000 to $300,000
property had not yet been platted with lots pres- range, a $50,000 damages award may be small con-
ently for sale (as in cases where the development solation for the owner and certainly still begs the
approach had been deemed admissible).99 The land- question of whether the credibility of the appraiser
owner also contended that the excluded compara- was damaged to the point of affecting the funda-
ble sales should have been alternatively admissible mental fairness of the trial.

Notes

1 No. 2020-0191 (Ohio 2022); see also Dan Trevas, State 15 Id. at 981.
Can Acquire Octagon Earthworks From Country Club, 16 Utah Code Ann. § 78B-6-521(1)(a)(ii) (2022).
Court News Ohio (Dec. 7, 2022), available at https://www.
17 511 P.3d 1155 (Utah 2022).
courtnewsohio.gov/cases/2022/SCO/1207/200191.asp#.
ZFO613bMJPY. 18 Id. at 1159 (quoting Cardiff Wales, LLC v. Washington Coun-
ty School District, 483 P.3d 1262 (Utah Ct. App. 2021)).
2 Id. at ¶44.
19 Id.
3 853 N.E.2d 1115 (Ohio 2006).
20 Id. at 1163.
4 Id. at ¶48.
21 193 N.E.3d 381 (Ind. 2022).
5 2022 NY Slip Op 07313 (N.Y. App. Div., Dec. 23, 2022).
22 Id. at 383.
6 Slip op. at 1.
23 Id. at 384.
7 Id. at 2.
24 Id. at 385.
8 Id.
25 Id. at 385-86.
9 Id.
26 Id. at 386.
10 Id. at 3.
27 880 S.E.2d 582 (Ga. Ct. App. 2022).
11 Lucas v. South Carolina Coastal Council, 505 U.S. 1003
(1992). 28 O.C.G.A. § 32-3-11 (b).
12 Wyo. Stat. Ann. § 1-26-801(d). 29 Edgewater, 880 S.E.2d at 586.
13 Colton v. Town of Dubois, 519 P.3d 976, 978 (Wyo. 2022). 30 Id. at 589.
14 Id. 31 211 A.D.3d 1495 (N.Y. App. Div. 2022).

18 | THE PRACTICAL REAL ESTATE LAWYER JULY 2023

 32 Id. at 1496 (“While OCIDA’s determination and findings rights in the condemned parcel under California law, and
indicate that the subject property was to be acquired for that his pending claim is ‘simply’ a statutory claim for
use as a surface parking lot, the record establishes that, monetary damages. But the statutory character of Cobb’s
contrary to respondents’ assertion, the primary purpose claim does not diminish its constitutionally protected sta-
of the acquisition was not a commercial purpose. Rather, tus—indeed, a constitutional claim for just compensation
the property was to be acquired because it was a neces- is a statutory claim for monetary damages under Califor-
sary component of a larger hospital and healthcare facility nia law.”).
project.”). 68 Id. at 46.
33 Id. at 1501-02. 69 Disclosure: one of the authors was counsel for the proper-
34 176 U.S. 335, 349 (1900). ty owners in the subsequent petition for writ of certiorari
35 No. 22-0432, 2022 WL 17825600 (La. Ct. App. Dec. 21, proceedings in the Supreme Court.
2022). 70 29 F.4th 226 (5th Cir. 2022).
36 Id. at *9. 71 Id. at 229.
37 Id. 72 Id.
38 Id. at *10. 73 Id. at 230 (citing Folsom v. City of New Orleans, 109 U.S.
39 No. 2021-1168, 2022 WL 17981391 (Ohio Dec. 29, 2022). 285, 289 (1883)). Justice Harlan’s dissent in Folsom noted
that because “the value of the judgment, as property, de-
40 Id. at ¶7.
pends necessarily upon the remedies given for its enforce-
41 Id. at ¶12. ment, the withdrawal of all remedies for its enforcement …
42 Id. is, I submit, to deprive the owner of his property.” Id. at 295.
43 Id. at ¶22. 74 973 N.W.2d 207 (N.D. 2022).
44 Id. at ¶30 (“Ohio Power is not required to have the Siting 75 Id. at 215.
Board or the Power Board approve the individual appro- 76 Id.
priations in order to appropriate a property or an inter-
77 512 P.3d 369 (Okla. 2022).
est or right therein. But if it does get such approval, then
it obtains the legal presumption of necessity.”) (citation 78 Id. at 372.
omitted). 79 Id. at 373 (“When the Town sought perpetual easements
45 Id. at ¶31. from the Snows for the continued use and maintenance of
the sewer lines more than seven years after the temporary
46 Id. at ¶35.
easements expired, the Snows owned the property, giving
47 Disclosure: one of the authors was counsel for the proper- them standing to allege an inverse condemnation claim.”).
ty owners in the subsequent petition for writ of certiorari
80 Id.
proceedings in the Supreme Court.
81 205 A.D.3d 808 (N.Y. App. Div. 2022).
48 In re City of Stockton, 909 F.3d 1256 (9th 2018).
82 Id. at 810-11.
49 41 F.4th 29 (1st Cir. 2022).
83 Id. at 812.
50 Id. at 41.
84 Id.
51 Id. at 37.
85 204 A.D.3d 905 (N.Y. App. Div. 2022).
52 Id. at 38.
86 Id.at 906.
53 Id. at 39.
87 Id. at 907.
54 Id. at 37.
88 Id. at 909.
55 Id.
89 Id.
56 Id. at 40.
90 Id.
57 Id. at 41.
91 Id. at 910.
58 Id.
92 205 A.D.3d 690 (N.Y. App. Div. 2022).
59 Id. at 42.
93 Id. at 691.
60 139 S.Ct. 2162 (2019).
94 Id. at 692.
61 In re Fin. Oversight & Mgmt. Bd., 41 F.4th at 43.
95 Id. at 693.
62 Id.
96 Id. at 693-94.
63 Id. (internal citations omitted).
97 517 P.3d 697 (Colo. App. 2022).
64 Id. at 44.
98 Id. at 703-04.
65 Id.
99 Id. at 702.
66 Id.
100 Id. at 705.
67 Id. at 45. In his dissent, Judge Friedland wrote: “The ma-
jority instead holds that Cobb has forfeited all property 101 Id.

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