Eminent Domain damages fall into two categories:
- Direct damages equal the value of the property actually being taken by the government from the owner. While the owner and the government may disagree on the amount of these damages, usually both sides understand the scope of the property which should be valued.
- For severance damages the scope of what should be valued is often not very obvious at all. Severance damages usually are not easy to calculate. Sometimes owners may not even be aware that severance damages exist. Since severance damages frequently far exceed direct damages, owners should be very careful that severance damages are accurately analyzed. The government often understates severance damages – frequently by substantial amounts. Many times the government will not even recognize the existence of severance damages at all.
Biersdorf & Associates has handled hundreds of eminent domain cases around the country involving a wide array of property types and sizes. Our ability to handle cases in a broader number of jurisdictions exposes our firm to cases involving unusual issues that involve complex litigation. Our work on these cases expands property rights through beneficial rulings at various Circuit, Appellate and State Supreme Courts. Below is a small sampling of our previous cases.
Eminent Domain Cases: ROW Setasides and Project Influence Rule
Background:
This case involved a developer who in trying to establish his development plat was required to get DOT approval. To get that approval, the DOT demanded that he set aside an out lot in his development to cover the land that would ultimately be taken for an expansion of the State Highway and interchange. The taking occurred several years later. The State based its damage estimate upon the irregular shaped size of the outlet parcel and consequently offered significantly less than what we thought the owner should receive.
Result:
Biersdorf & Associates determined that the shape of the parcel was caused by the project and that the proper measure of damages should be based upon a before value using a plat that would have encompassed the outlet parcel and an after value based upon the plat with the outlet parcel removed. The case proceeded to trial and the court agreed with us and determined the damages based upon our methodology.
Eminent Domain Cases: After value determined by access restrictions
Background:
This case involved a large farm that was in the path of residential development. The DOT was constructing a new highway and the taking left only agricultural access for most of the parcel. The State argued that, in spite of the access restriction, it still could be considered for development potential after the taking.
Result:
Biersdorf & Associates approached the case with the understanding that the after value had to be based upon the actual access that was left by the terms in the taking document. Because the access was restricted after the taking, we valued the remainder using agriculture land values, and not residential development land values used when calculating the before value. Because the State failed to consider the adjusted after value of the 100 acre farm, there was a significant difference between Biersdorf & Associate’s calculation of just compensation and that being offered by the State. The case went to trial and the jury awarded significantly more in compensation to the owner based upon our arguments.
Eminent Domain Cases: Business Damages
Background:
This case involved the taking of an outside storage area for the largest chemical and seed distribution company west of the Mississippi. The taking prevented them from constructing needed improvements for satisfying market demands in their industry. In order to satisfy those demands and have a parcel large enough to construct those improvements, the company was forced to buy a new parcel of land in the immediate vicinity of the property taken.
Result:
Biersdorf & Associates determined that the land and business owner was entitled to additional compensation in order to minimize damage caused by the taking. The case went to a hearing before commissioners who awarded the company additional money necessary to build a new facility after receiving credit for the sale of the remainder parcel that was left after the taking occurred.
Eminent Domain Cases: Loss of Development Potential
Background:
This case involved a commercial property along a federal highway that also backed up to the Mississippi River. It was a prime commercial location and the highway expansion required a narrow strip of property along the existing highway. Because the elevation of this property dropped dramatically from the road surface down to the river, the acquisition resulted in most of the level, buildable portion of the property to be acquired for the roadway expansion. This left the property as a nonbuildable site after the acquisition. This loss of development potential was not reflected in the offer from the State and data in the marketplace was limited to prove the loss of value to the remainder.
Result:
Since the owners decided they no longer wanted the property after the acquisition, Biersdorf & Associates took a unique approach when determining the loss of value to the remainder. The owner put the property on the market, and Biersdorf & Associates would use the sale price to determine the true after value of this parcel. However, after the property was aggressively marketed by a local broker for nearly one year, the listing price was reduced to such a significant level that Biersdorf & Associates compelled the State to acquire the entire parcel for its value prior to the taking plus paying costs and fees. This reflected a dramatic change in the initial offer of the State and reflected an amount that assumed the parcel was still developable.
Eminent Domain Cases: Loss of development potential and inverse condemnation
Background:
This case involved a strip taking of development property for the widening of a county road. The subject parcel had limited buildable area because a significant portion of the parcel was under water covered by a local pond. The county road subject to the expansion was at an elevation significantly higher in the grade of the subject property. Consequently, a significant slope was required to support the roadway. In order to claim that the subject property had more land area for the remainder, the County declared only a temporary easement to construct the slope for the roadway.
Result:
Biersdorf & Associates determined that the slope should have been part of the taking because, after the taking, the owner no longer had any control over how the land on that slope could be modified or altered. An inverse condemnation was commenced to add the area covered by the temporary easement as a portion of the total taking. The case went to trial and the court agreed with our methodology. The resulting acquisition was much larger and caused the remainder to suffer more significant severance damages resulting in a significantly larger award to the owner.
Eminent Domain Cases: Proximity Damages Case Study
Background:
This case ended up being a case study for determining proximity damages caused by the construction of a new highway close to a residence. The subject property was sold before the project was commenced. Unfortunately, the project was known to be in the works, however, and the owners did not tell the buyers about the project. The court then ordered the sale to be rescinded and the property returned to the original owner. After the taking occurred, the owners then put the property on the market again, and were ultimately able to sell it at a significant reduction from the original sale price.
Result:
Biersdorf & Associates approached this case with the understanding that the two sales should constitute the before and after valuation scenario, which would lead to a significantly larger amount of compensation than what was being offered by the State. The court, during a settlement conference, recognized our approach and quickly settled the case along those lines. The two sales that occurred with regards to this property have been used as a classic case study to evaluate the level of severance caused from the phenomenon of proximity damages caused by a new highway footprint.
Eminent Domain Cases: Inverse Condemnation of commercial property
Background:
This case involved a commercial property that lost direct access to a US Highway when the DOT converted the highway to interstate standards. The subject property had a narrow recorded easement across a neighboring parcel that the State determined was reasonable alternative access and consequently offered the land owner nothing for the loss of access. However, the owner wasn’t able to operate his commercial business with the restricted easement access. This is one of those eminent domain cases that affects business owners nationwide.
Result:
Biersdorf & Associates recognized that the remaining access wasn’t suitable for the business, and that the loss of access to the main highway constituted a taking. We initiated an inverse condemnation claim and presented evidence at trial detailing the problems associated with the new easement access, and the court agreed with our analysis that a taking had occurred. This led to a settlement of the case along the lines claimed by the owner for the loss of the ability to operate his commercial business.
Eminent Domain Cases: Highest and Best Use
Background:
This case involved the total acquisition of a warehouse for a new interchange project in a large metropolitan area. The State valued the property at its current industrial use and offered compensation based upon comparable industrial property sales in the area.
Result:
Biersdorf & Associates recognized a classic case of mistaken highest and best use on behalf of the State. We convinced the court that any reasonable buyer would convert the property to a residential use specifically for multi-residential development. Consequently, we were successful at securing a significant amount of additional compensation for this landowner.
Eminent Domain Cases: Highest and Best Use and lost development potential
Background:
This case involved a 400 acre parcel of agricultural land that was subject to a partial taking when the State DOT constructed a new 4-lane divided highway. The State valued the taking as agriculture and failed to recognize severance damages. This is one of those eminent domain cases that happens more than it should.
Result:
Biersdorf & Associates recognized that the location of the parcel supported a highest and best use of commercial, and the new highway would limit the development potential of the remainder parcel. The case proceeded to trial and we were successful at securing more than 8x the amount offered by the State for the property owner.