Seattle Eminent Domain Lawyer | Eminent Domain Jury Trial

All attorneys, no matter if you represent landowners in an eminent domain case or the condemning authority (Washington Department of Transportation, Sound Transit, Puget Sound Energy, Seattle Department of Transportation, King County Department of Transportation, etc.) feel like if they are taking a case to trial they have a fairly good shot of receiving a favorable verdict. The truth is, however, that often the chances are closer to fifty fifty, and it is impossible to tell what a jury will focus on in your specific eminent domain trial. Often the margin between a successful verdict and an unsuccessful one is razor thin.

For example, in South Dakota, a recent jury trial in an eminent domain action for land for an airport resulted, in essence, in a victory for the county. From the story, found here, it looks as though there was a legitimate difference of opinion in the value of the land. The County was at about $5,000 an acre, and the landowner was at about $8,000 an acre. In the end, the jury decided the County's determination of value was closer to correct, returning a verdict very close to what the County offered as value.

As an aside, in a case like this, with only $3,000 in difference between the parties, no matter what the amount of acreage (in this case it was 200 acres, making a difference of about $600,000 in price) I can't believe a settlement wasn't reached. Although a trial doesn't cost $600,000, generally it is expected that the jury will come somewhere in the middle of the parties. One side must have been fairly confident in their expert appraiser to take this to trial. In this case I hope it was the County.

In any event, as always, it is important to have a good eminent domain attorney, and because we are in the Seattle area, a good Seattle eminent domain attorney. Not only can it make a difference at trial, but they will have the knowledge and experience to know when it is time to go to trial, and sometimes, more importantly, when it is time to settle and take as much as you can get over the offer.

Eminent Domain | When does a Taking Occur?

When Does Interference with Property Constitute a Taking for Eminent Domain Purposes.

I got a question the other day from one of my clients regarding when a taking actually occurs. What has happened in this particular case is a highway project has been designed that requires more right of way than is currently owned by the state. Through the design process, the precise amount of right of way needed has been figured out and a map of the new right of way limits has been drafted and is available to the public. Several property owners have seen this and are now worried that: (1) their property values are going to be greatly diminished because there are plans to put a highway through their house; and (2) they will not be able to sell the house because no one want to buy a house that some day will have a highway run through it.

My clients came to me to find out at what point a taking has occurred and compensation must be paid to a landowner. They don't want to start a fight they will lose if they don't have to.

This question regarding taking property and when it actually occurs is a common one faced by both governing bodies and landowners. Often designs are put together when no money exists to carry the design to fruition. What happens then is landowners are unhappy because they can't sell their house and the government isn't happy because they have unhappy landowners and no money to make them happy. The short solution to this problem, and what I was forced to tell my client, is that the property owners lose this battle (unless a couple of specific things happen).

Diminution in Value is Generally Not a Taking under Eminent Domain Law

The general rule of law, at least in the state I am practicing in, is that planning and plotting alone does not constitute a taking for eminent domain purposes. Other eminent domain attorneys may take your case and argue as hard as they can otherwise, but generally they will lose if only planning or even plotting has occurred. This means that in my footprint example above, even though in reality the landowner most likely can not sell his property or must sell it at a much lower price than prior to the footprint identification, no taking for eminent domain purposes has taken place.

As a practicing eminent domain attorney, I can assure you that some diminution in value does occur in this instance, and the courts even recognize that. The courts also understand the gridlock that would ensue if every landowner effected by a public improvement project could receive compensation for the loss in value of their property. No state would be able to pay for that loss in value, and the infrastructure of the country would likely crumble.

Prohibition from Land Use Can Constitute a Taking under Eminent Domain Law.

Now, the situation changes though, if you want to do something to your property that is legal, but only because of the identified footprint you are prohibited from doing it. As an eminent domain attorney, I could see a great argument for a taking under that circumstance.

For example (and this factual situation is straight of a real case), if you, as a landowner, wanted to put a Blockbuster on your property, or plat it for a residential development, you first have to go through the planning process and have it approved by the City Commission. One of the things the city commission looks at is whether or not the proposed plat conforms to zoning regulations, and other things of that nature - these are legally permissible. If, however, the commission sees that your planned subdivision is directly in the footprint of right of way needed for something else and they only allow the plat if you agree not to build in the area needed by the city, a taking has occurred. What they have done is prevent you from using and enjoying your property to its highest potential.

The reason for success in the second scenario is obvious - in addition to the loss in value caused by the public improvement footprint, the governing body is actually preventing you from using your property in a way that would normally be permissible simply because they want to protect right of way for a future project.

As always, when faced with these issues, contact an experience eminent domain attorney.

If you have any questions or comments, please feel free to leave them below.

Eminent Domain | Two Types of Taking | Just Compensation

Eminent Domain Law - Two Types of Takings Just Compensation

There are two basic types of takings in the Washington eminent domain law. The first is referred to as a total take. As it sounds, this situation occurs when an entire parcel or tract of land is acquired for a project. The second type of taking is a partial take, and as it sounds, refers to the acquisition of only a partial portion of a tract or parcel. Although it may seem like a small distinction, when analyzing the value of property it becomes very important as valuation of the different property types is done in very different ways.

Condemnation Just Compensation Valuation of total take

The analysis for valuing a total take is straightforward. Using one of three appraisal methods (comparable sales, replacement cost, or income), or a combination thereof, one just determines the actual current fair market value of the property and that is the amount of just compensation owed to the landowner. No further analysis is necessary.

This should make perfect sense from both the landowner's and government agency's point of view. To determine just compensation for an entire tract of land, intuitively the analysis would be to find out what the property as a whole is worth. Whether or not the number arrived at in the analysis is correct is another story, but the theory behind it is sound.

Washington State Just Compensation Valuation of Partial Take

As easy as total takings analysis can be, partial takings can be difficult. Just taking a quick glance at the situation it may seem that the best way to find out what the fair market value of a partial taking is to determine what that size of property is worth and pay for it. Although this seems correct, in practice it just doesn't work out. Using an example of a partial taking for a highway project will demonstrate the error in that determination.

Let's assume there is a highway project in the works that requires 8 acres off a 60 acre parcel in rural Kansas. Using the above proposed methodology, the appraiser would use the sales comparison approach and look for properties in the area recently sold that were between 6 and 10 acres to gauge the fair market value of similar sized tracts. In doing so, the appraiser would probably determine most of the tracts were being sold as rural-residential properties. Let's say that number was $5,000 and acre.

Under the above proposed theory, the analysis would be complete. The 8 acres would be worth $40,000, and that would be it. However, what if I told you that the 8 acres being taken was cutting right through the 60 acres, leaving 10 acres on one side and 42 acres on another, and that the 10 acres would be useless because there would be no way to get to it once the road is built? Under the above theory, there is no way to compensate for that, unless you want to argue that the 10 acres is a take under inverse condemnation principles and therefore just compensation is due. Well, what if it wasn't useless but the owner would have to drive 5 miles around the road to get to it? Then there would be no argument for inverse condemnation, and he would be stuck.

Another problem that might happen is what if 1 acre is being taken off of 60 and 60 acre parcels are going for $1,000/acre and 1 acre parcels are going for $20,000/acre. Does it seem fair to pay the owner of land that is really worth $1,000/acre $20,000/acre just because a small sliver is required? No should be your answer.

To counter these problems, and a couple of others, a theory of just compensation was derived which examines the full value of the property before the taking, and then the full value of the property remaining after the taking, and taking the difference in those two to arrive at a just compensation amount. Under that analysis, a true measure of just compensation is reached, and any damages that might be associated with the taking are accounted for.

Next time - comparable the comparison sales approach is explained.

Washington State Eminent Domain Landowner Consultation