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A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners
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A Lawyer's Take on Eminent Domain Issues: Better Planning to Minimize Impacts to Business Owners

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  • 1. A Lawyer’s Take onEminent Domain Issues – Better Planning to Minimize Impacts to Business Owners Presented by: Anthony H. Misseldine ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 2. ©JacksonWhite, P.C.(2012) All Rights Reserved
  • 3. FY 2016 CONSTRUCTION PROGRAM ?
  • 4. FLOOD CONTROL DISTRICT OF MARICOPA COUNTY: ACTIVE PROJECTS
  • 5. ―. . .nor shall private property be taken for public use,without just compensation.‖5th Amendment to the United States Constitution
  • 6. • ―Private property shall not be taken for PRIVATE use. . .‖• ―No private property shall be taken or damaged without JUST COMPENSATION having first been made. . .‖ Arizona Constitution: Article 2 Section 17
  • 7. CAN THE EXERCISE OF THE POWER OFEMINENT DOMAIN BE CHALLENGED?? ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 8. YES, BUT FEW SUCCEED.• Early involvement• Be aware of planning process• Give input (show up at public meetings)• What is at stake if the project is approved? ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 9. WHAT IS A TAKING? ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 10. A TAKING MAY BE. . .• TOTAL OR PARTIAL• PERMANENT OR TEMPORARY• REGULATORY ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 11. WHAT MAY BE TAKEN? ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 12. WHAT INTERESTS IN ―PROPERTY‖ MAY BE TAKEN BY EMINENT DOMAIN?• ANY INTEREST IN REAL PROPERTY• FEE TITLE• LEASE (LANDLORD/TENANT)• EASEMENT/LICENSE• SURFACE/SUBSURFACE ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 13. WHAT ARE NON-COMPENSABLE DAMAGES? BUSINESS LOSSESS ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 14. The Process1. Resolution to acquire property (purchase or condemnation)2. Appraisal or basis for valuation • Be careful what you say or disclose3. Offer to purchase (20 days)4. If the property owner accepts—sale of real estate5. If not, government must condemn: • File lawsuit • Immediate possession • Expert reports/Rebuttal • Trial • Judgment (jury trial) • Government pays the judgment • Court enters a ―Final Order‖ conveying title ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 15. WHAT IS IMMEDIATE POSSESSION?• GOVERNMENT’S RIGHT TO USE THE PROPERTY BEFORE JUDGMENT IS AWARDED (ARS § 12-1116)• DEPOSIT OF ―PROBABLE DAMGES‖• PRE-JUDGMENT INTEREST ON DAMAGES FROM THE DATE OF POSSESSION • Includes actual damages awarded above the deposit • The deposit may be drawn down, but there is a catch. ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 16. HUH?• WHAT MAY AN OWNER DO WITH PROPERTY AFTER A PUBLIC PROJECT IS ANNOUNCED, BUT BEFORE A CONDEMNATION LAWSUIT?• REASONABLE ENHANCEMENTS ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 17. NECESSARY INFORMATION• Title report (read it and related documents)• Alta survey of property• Aggregate/Ore studies• Reserve studies• Supply/Demand information• Operating information• Royalty rate data• Permit status and history• Ownership
  • 18. 75TH AVENUE & THE SALT RIVER ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 19. VALUATION AND APPRAISAL ISSUESWho may testify as to the value and damages? • Property Owner (Company representative with knowledge/authority) • Appraiser • Not all appraisers are the same • Valuation method(s) must be accepted by the courts • ―Daubert‖ challenges • Cost • Other experts may be required
  • 20. POTENTIAL CONCERNS• Tax valuation appeals• Business records being shared• Violations or citations• Lapsed permits• Statements/Data submitted to agencies• Discussions with appraisers, engineers, for the government• Prior appraisals/valuations• Costs
  • 21. U.S. ARMY CORPS and 404 PERMITS RAPANOS et ux., et al. v. UNITED STATEScertiorari to the united states court of appeals for the sixth circuit ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 22. THE TEAM• Owner/Operator• Eminent Domain Attorney• Appraiser• Engineer/Hydrologist/Geologist• Others
  • 23. THE PART TAKEN ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 24. SEVERANCE DAMAGE―. . .any diminution in value of the remaining property caused by thetaking.‖Examples of this include:• DRAINAGE • RE-OPENING MINE PLAN APPROVAL• LOSS OF PARKING • TRIGGERING GOVERNMENT REVIEW• RESTRICTED ACCESS • INCREASED COST OF OPERATIONS• DECREASING SIZE • REDUCED RESERVES• CHANGE IN USE • PERMITS• FUNCTIONALITY• AESTHETICS ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 25. California Case ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 26. California Case – During Construction ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 27. California Case – Near Completion ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 28. Creamland Dairy – 2002 Aerial View ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 29. Creamland Dairy – 2007 Aerial View ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 30. PARK CITY BEFORE ©JacksonWhite, P.C. (2012) All Rights Reserved
  • 31. PARK CITY AFTER ©JacksonWhite, P.C. (2012) All Rights Reserved

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