Clara was 100 years old and had lived in her home for 72 years when her home was condemned for a road improvement project. The condemnor offered $120,000 for the value of the real estate. The condemnor failed to offer relocation benefits as provided for in the Pennsylvania Eminent Domain Code and in Federal Regulations. The condemnor later agreed with the eligibility for relocation benefits, but insisted on low benefits based upon Clara moving by herself to a similar, single-family home. Eventually, the condemnor agreed that the requirement of “decent, safe and sanitary” housing required payment for an assisted living relocation to satisfy the safety requirement. The matter settled at $207,000. Clara, at the age of 101, comfortably moved into her choice of an assisted living facility.
A bridge project led to a $230,000 offer for a convenience store property. The
acquisition would have taken one-third of the corner lot and a temporary construction
easement over the remaining land along with demolition of the store. The lot would
have become and economic remnant. Negotiations led the parties to agree with the
owner’s demolition of a small part of the building with reconstruction. The owner was
able to retain a building and the convenience store business. Additionally, financial
compensation of $244,000 was paid.
The U. S. Supreme Court has decided a landmark case clarifying that government temporary flooding of property may amount to a taking, or condemnation, of property. This is a strong case in favor of property rights. The Owner’s Counsel of America had submitted an amicus, friend of the court, brief. On the day after the decision, I used that legal authority in written argument in a case involving flooding with water with acid rock drainage from a highway project.
High Court Sides with State Wildlife Agency in
By Peter Urban Stephens Washington Bureau
Corps of Engineers Suit
WASHINGTON – The U.S. Supreme Court on Tuesday rejected the government’s argument against compensating the Arkansas Game and Fish Commission for damages caused by temporary flooding.
In a unanimous opinion, the high court found “no solid grounding in precedent” for setting flooding apart from other government intrusions on property.
The Supreme Court reversed a federal appeals court decision last year that overturned a ruling that would have awarded the Arkansas wildlife agency $5.7 million for hardwood timber lost over six years of summer flooding at the Dave Donaldson Black River Wildlife Management Area in northeastern Arkansas.
“No decision of this court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case,” wrote Justice Ruth Bader Ginsburg.
However, the decision does not guarantee that the commission will be compensated. The justices noted that the government raised several challenges that were not considered by the appeals court. Those challenges remain open for consideration.
“Obviously we are thrilled with the Supreme Court’s decision,” AGFC Chief Legal Counsel Jim Goodhart said. “It’s been a long road to get to this point and we’ve still got a ways to go, but the 8-0 decision sends a strong message about what our agency has been litigating with the U.S. Army Corps of Engineers over the past seven years.”
Property rights advocates hailed the decision.
The Pacific Legal Foundation, which advocates for private property rights, said the Supreme Court had closed a “dangerous loophole in takings law.”
“Simply put, the Takings Clause does not come with a stopwatch. If government commits a taking, including flooding or occupying someone’s land, there is an obligation to pay, period. That obligation doesn’t depend on how long the government uses the property,” the organization wrote on its website.
The National Federation of Independent Business issued a statement supporting the Supreme Court ruling.
“This decision is a victory for small-business owners – farmers and ranchers especially – whose property is essential to their livelihood and the success of their business,” said Karen Harned, executive director of the NFIB Small Business Legal Center. “Temporary government invasions can be costly if left uncompensated.”
During oral arguments in October, Deputy Solicitor General Edwin Kneedler, arguing for the government, said the Army Corps of Engineers should not have to compensate downstream landowners whose property is temporarily flooded.
“It is in the nature of living along a river. Riparian ownership carries with it certain risks and uncertainties, from weather, from intervening causes,” Kneedler said.
Goodhart, the Game and Fish Commission lawyer, argued that flooding should not be treated any differently than any other type of government “taking,” and that in this case there was “substantial intrusion” that demands compensation.
“Apply the rule of law here for physical taking and look at it as the Court of Federal Claims did: Was there a direct physical injury? Did it result in substantial intrusion on the commission’s property? If so … there should be just compensation,” Goodhart said.
As part of a pending civil lawsuit, a Pittsburgh senior federal judge determined that Svonavec Inc. did not establish that it possessed any right to mine the coal under the Flight 93 National Memorial at the time the United States acquired the company’s land by eminent domain, other than eight acres not in dispute.
On Sept. 2, 2009, the federal government acquired Svonavec Inc.’s 275.81 acres in Stonycreek Township by eminent domain for use as the Flight 93 National Memorial. The acquisition was subject to existing easements and certain rights of third parties that included coal mining rights.
Immediately after the Sept. 11, 2001, crash of Flight 93, on which crew and passengers gave up their lives to fight a terrorist takeover of the aircraft, Svonavec Inc. set up a temporary memorial on its property at the crash site. Within weeks the public was using the temporary memorial to honor the heroes of Flight 93. The coal company did not use its land for any other purpose from that date until the United States took ownership of the property on Sept. 2, 2009.
The federal government has the authority to take private property for public use as long as it satisfies its constitutional obligation to provide “just compensation.” In general just compensation means the fair market value of the property on the date it is taken, according to federal case law.
By law, the government must explore all aspects of the value of a property it takes ownership of through eminent domain to determine the amount it needs to pay for the property. Mineral rights are one aspect. “This is a very complex case. The case is still active. The judge’s decision (on the coal mining rights) is just one small issue that is involved in the case,” said Somerset attorney Patrick Svonavec, who represents Svonavec Inc. of Somerset. The federal government did not dispute that Svonavec Inc. owned the 275.81 acres of surface land on Sept. 11, 2001, but it argued that the company did not own the coal underneath. If the court had determined that Svonavec Inc. owned the right to mine coal, the property more than likely would have a higher value. Senior U.S. District Judge Donetta Ambrose agreed with the federal government’s argument.
In the civil action, Svonavec, the defendant, was required to present documentation on the chain of possession of mining rights under the tract. “Defendant relies primarily on missing, unrecorded and incomplete documents to support its chain of title for the alleged coal leases,” Ambrose wrote. “The existence, terms and/or validity of these documents are unknown and unknowable to the court.”
The government believes $611,000 is just compensation for the property. A company official has said he believes that amount is too low. “I anticipate the court will tell us soon a timeline, and hopefully we get it to trial and get a resolution,” Svonavec said. U.S. Attorney Albert Schollaert, who is listed as the attorney on behalf of the federal government, did not respond to a telephone request for comment.
Mike Faherty completed litigation of a Lehigh County condemnation for a road widening. The Condemnor asserted the commercial property was vacant and offered $63,600. Faherty presented evidence that the former gas station was used as a motor vehicle repair garage and vehicular access was eliminated during construction. The Board awarded $110,000 in property damages plus delay damages and professional fees.
A Third Circuit ruling denied the Tinicum Township challenge to The Philadelphia Airport Expansion. The property acquisitions might now go forward.
COURT REJECTS APPEAL OF PHILADELPHIA AIRPORT EXPANSIONphilly.com
Posted: Wed, Jul. 11, 2012, 7:58 AM
A federal appeals court has denied Tinicum Township’s petition for a review of the $6.4 billion planned expansion of Philadelphia International Airport. Tinicum, which adjoins the airport and would lose 72 homes to the expansion, wanted the project halted because of what it said was an inadequate environmental analysis by the Federal Aviation Administration. But three judges of the U.S. Third Circuit Court of Appeals, who heard arguments in the case, rejected that claim. In the opinion written by Judge Anthony Scirica, the court said: “As the lead agency, the FAA has some latitude to determine the level of analytical detail necessary to support an informed decision and to adequately disclose air quality impacts to the public. “The technical errors alleged by Tinicum do not render the FAA’s air quality analysis arbitrary or capricious.” The court released the decision on Friday and it was first reported today by The Legal Intelligencer newspaper. No word yet on whether Tinicum will appeal the decision to the U.S. Supreme Court.
The distance between the city of Philadelphia and US Airways has narrowed, per a Philadelphia Inquirer editorial. The city is reported to have withdrawn its threat of increased rates via ordinance. Lease negotiations could alter the expansion and remove US Airways opposition. Check out the editorial on this issue: http://bit.ly/Ks6KQi
Property owners who’s property is threatened by eminent domain may expect fairness and good faith negotiations. However, condemnors may work hard to deny the constitutionally protected property rights. Owners are well served to learn of the laws which protect owners.
This guide is for property owners and business owners whose property and/or business may be taken from them by government through the power of eminent domain. This guide is intended to introduce you to the law applicable to Pennsylvania eminent domain and the rights to which you are entitled.
The United States Constitution provides the power of eminent domain which may result in extreme consequences for property owners:
“No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”
- United States Constitution, Fifth Amendment
This guide is intended only as an aid for understanding general eminent domain issues. It does not constitute legal advice and should not be relied upon for that purpose. Laws are subject to change at any time and any such change could render the information contained in this guide obsolete. Legal counsel should be contacted for specific advice regarding specific cases. To do so, simply call, fax, mail or email your question to:
Attorney Michael F. Faherty 225 Market Street, Suite 304 P.O. Box 1245,
Harrisburg, PA 17108-1245
Phone: (717) 233-6633 – Fax: (717) 233-7003
THE POWER OF EMINENT DOMAIN
1. What is eminent domain and when can it be used?
Eminent domain is the power of government to acquire property for public use so long as the government pays just compensation. Recognized public uses for which the power of eminent domain may be used include: highways, roads, schools, public buildings, and the elimination of blight. The government can exercise the power of eminent domain to acquire property even if the property owner does not wish to sell the property. Government taking of such property is called a condemnation, or a taking.
2. Can I challenge the government’s right to acquire my property?
Yes. The vast majority of government organizations possess the power of eminent domain. However, the law recognizes that this substantial power must be used in accordance with specific, detailed procedures. A common challenge to the right to take is failure of the government to follow the proper procedural requirements. If the government fails to correctly follow the required procedures, a right to take challenge may succeed, stopping the condemnation. The challenge to the right to take is presented to a court via preliminary objections. Limited time is allowed for preliminary objections. Such objections must be carefully prepared and filed with the court within thirty (30) days after the property owner is served with the condemnation document which is called a declaration of taking.
3. May I challenge the public use?
Yes, but this challenge is difficult to win for the property owner. The Fifth Amendment of the United States Constitution allows private property to be taken by eminent domain only for a public use. A possible challenge to the government’s right to take can be raised where the proposed government use is not an adequate public use. The 2006 changes to the Pennsylvania Eminent Domain Code limited the uses which qualify as valid public use. Elimination of blight through redevelopment projects may be a public benefit which may satisfy the public use requirement. A use which provides a minor public benefit and a large private benefit may also be held to be public use.
4. What if I am successful in challenging the government’s right to take my property?
When a property owner successfully challenges the government’s right to acquire property by eminent domain, Pennsylvania law provides that the eminent domain proceeding may end. The property owner may be entitled to recover expenses, including reasonable appraisal, attorney and engineering fees.
5. If I challenge the right to take and I lose, am I responsible for the government’s costs?
No. When the right to take is challenged and that challenge is unsuccessful, the government may proceed with the acquisition and the property owner is not liable for the government’s costs. In this situation, the property owner continues to have the same right to be paid just compensation for the property condemned.
EMINENT DOMAIN PROCEDURES
1. What steps must the government take to acquire my property by eminent domain?
Multiple, specific steps are required in the condemnation process:
(1) Approval of some project or plan by a governmental organization with the power of eminent domain.
(2) Estimation of just compensation.
(3) The governmental organization will usually attempt to buy the property.
(4) The offer to buy may be based upon an appraisal which might be performed by a governmental employee or a private appraiser hired by the governmental organization.
(5) The government takes, or condemns, land by filing a declaration of taking in a court. A valid declaration of taking satisfies a number of specific requirements including:
- a specific reference to the statute, article or section of law by which the condemnation was authorized by government
- identification of the place where the record of the authorization may be examined
- a brief description of the purpose of the condemnation
- a description of the property condemned sufficient for the identification of that property
- a statement of the nature of the title acquired
- a declaration of taking in a court. A valid declaration of taking satisfies a number of specific requirements including:
- a statement specifying where a plan showing the condemned property may be inspected.
2. Must the government notify the property owner?
Yes. Within thirty days after the filing of the declaration of taking the condemnor must give written notice of the filing to the condemnee. That written notice must meet detailed specifications of the information required by law.
3. Am I entitled to a copy of an appraisal report which the government may use to form the basis of the amount of an offer for the purchase of the property?
No! The government is required to estimate just compensation, but is not required to provide the written report of an appraiser. However, when value of the property is disputed the government and the property owner usually exchange appraisal reports before any court proceeding.
4. Am I required to accept the amount of the government offer?
No. The property owner is not required to accept the condemning agency’s offer. Instead, the property owner may make a counter-offer and may request a much higher value of the property. A governmental organization, like any organization acquiring property, has an interest in obtaining such property for a relatively low amount.
The value of the property is very subjective. A wide range of values could encompass the figure which is the true just compensation. Property owners, tenants and business owners often receive higher, and in some cases much higher, compensation than the amount of the government’s offer. This is not always the case and an experienced eminent domain attorney should be contacted to evaluate each case on its own merits. The property owners rights deserve full review and protection.
5. When does possession of property transfer from the owner to the government?
Thirty (30) days after the filing of the declaration of taking the government shall be entitled to possession of the property upon payment of, or offer to pay, the amount of just compensation as estimated by the condemnor.
6. What if I disagree with the amount of the government’s estimation of just compensation?
The estimate of the dollar amount of just compensation is recognized as a very subjective estimate. An appraiser working on behalf of the government may provide an estimate of a figure which is much lower than what the property owner expects. Such a government estimation might be extremely low when compared to an estimate of value as determined by a real estate appraiser working on behalf of the property owner.
If a property owner believes that the government’s estimate of compensation is too low, the property owner may apply to court in order to obtain a higher amount. The property owner may seek greater compensation by a legal filing known as a petition for appointment of viewers. Such a petition would lead a court to appoint a Board of Viewers which would hear evidence of the value of the property.
Experienced eminent domain counsel should be contacted to discuss your specific case. Your case would be handled on a contingency fee basis by which the attorney would receive a percentage of any amount obtained over and above the amount of the government’s offer. In other words, the property owner would owe no attorney fee, unless the attorney obtains more money for the property owner.
1. What is Just Compensation?
Just compensation is the difference between the fair market value of the property owner’s entire property interest immediately before the condemnation and the fair market value of the property interest remaining after the condemnation.
2. What may be considered in evaluating fair market value?
Fair market value takes into account the present use of the property, the highest and best reasonably available use and also machinery, equipment or fixtures which may form part of the real estate. Other factors may also be considered.
3. May the property owner obtain reimbursement for appraisal, attorney or engineering fees?
Yes. As of September 1, 2006 the cap for this recovery was increased to $4,000.00.
4. May a property owner recover interest when payment to the property owner is delayed?
Yes. Delay compensation is provided for in the Pennsylvania Eminent Domain Code.
5. What if only part of my property is taken?
Often the government needs only a portion of a particular property such as a strip of land needed for road widening. Just compensation is then properly determined not only by the value of the part taken, but also by the damage to the remaining property. Such “severance damages” may be minimal or very significant. Estimates of severance damages are particularly subjective and subject to a wide range of values. Experienced eminent domain counsel and experienced real estate appraisers are important in evaluating the potential damages of partial takings.
6. May a property owner be eligible for moving expenses?
Yes. Any displaced person shall be reimbursed for reasonable expenses incurred in moving himself and his family and for the removal, transportation and reinstallation of personal property.
7. Is a business eligible for relocation damages?
Yes, but such damages are capped.
The law firm of Lavery Faherty Patterson provides legal services concerning eminent domain law. The Harrisburg law firm provides statewide services on the direction of Attorney Michael F. Faherty.
Attorney Faherty is a senior partner in the law firm and is one of the most experienced in eminent domain attorneys in Pennsylvania. Mr. Faherty is an honors graduate of Lebanon Valley College. He earned a Masters Degree in psychology from the University of Akron. He is a graduate of Rutgers School of Law in Newark. He worked for the Boy Scouts of America in New York City for six years directing training programs and serving as a finance director.
Mr. Faherty eminent domain work began with employment at the Pennsylvania Department of Transportation. He served as an attorney in the right-of-way section of the real property division. He then handled eminent domain issues and cases before various courts. He was then promoted to the position of counsel in charge of the right-of-way section for PennDOT. He then managed the eminent domain litigation of PennDOT.
Mr. Faherty moved into the private practice of law in 1992 and since then has represented property owners throughout the Commonwealth. He recently served as President of the Pennsylvania Defense Institute, the Pennsylvania association of defense attorneys and insurance executives.
He now serves as the representative for Pennsylvania to the Owners’ Counsel of America. This is the leading national association of eminent domain attorneys protecting property rights.
Mr. Faherty is available for eminent domain legal services. Initial, free consultations are available by contacting Mr. Faherty by phone, e-mail, fax, or correspondence.
A recent Patriot News publication titled Here It Comes described the anticipated natural
gas pipeline planned to run from Lycoming County, PA, to Rockville, MD.
The article touted the anticipated lower energy prices in Central Pennsylvania. However,
other unfavorable aspects of the process are also coming to Central Pennsylvania.
The article repeatedly quoted Bill Moler, the Chief Operating Officer of the responsible
company, Inergy Midstream. He described the company’s approach of paying for
property damages in a manner in which the various owners along the route would receive
the same amount of money per foot of the right-of-way acquisition. Unfortunately, this
plan and approach to property rights is in direct conflict with the controlling Pennsylvania
law, the Pennsylvania Eminent Domain Code.
The correct approach to damages, which may be much more costly to Inergy Midstream,
is to pay eminent damages based on the fair market value of the entire property interest
before and after a condemnation. The proper approach would suggest that a peaceful
residential property would have much more significant monetary damages than a vacant
property. Property owners would be wisely cautious in dealing with a company which
seeks to avoid paying fairly for the acquisition of property rights.
Mike Faherty will speak at the Land Use Institute in Philadelphia on Friday, April 20. This institute is a valuable resource for the land use practitioner. Topics will range from legislative updates to stormwater management, site-specific relief, the new PennDOT regulations that take effect in 2012, as well as many more information-packed sessions.
The Institute will be held from 8:30 am to 4:30 pm on Friday, April 20 at the CLE Conference Center, Wanamaker Building, Philadelphia. It will also be simulcast at 20 different locations across Pennsylvania. For more information and registration click here.