tHemAnYDisCiPLinesimPLiCAteDBYeminentDomAinLAw
Eminent Domain law Section
Continuedfrompage28
As it relates to the actual infrastructure project , all attorneys involved must have a rudimentary understanding of surveying and civil engineering . This knowledge will allow them to decipher the condemnor ’ s right-of-way maps and analyze its design plans . A basic knowledge of roadway , pipeline , and stormwater management facility construction is also critical to apprehend the improvements being constructed in the area of taking , and how they might impact the owner ’ s remainder property .
Impacts to a property ’ s footprint may also trigger land-use / planning and engineering issues . For instance , does the owner have development plans or entitlements that will be adversely impacted by the taking ? Is the property being used for its “ highest and best use ?” Or , is there a probability the owner might receive a rezoning for a different use ? If the site is developed , will the taking render it non-conforming to local codes , thereby requiring an administrative adjustment or variance ? Are access , parking , or signage being disturbed , and if so , is a “ cure ” necessary to restore functionality , or otherwise bring the site into regulatory compliance ? If yes , what future permitting will be required ? These issues , and many others , require familiarity with land-use and development fundamentals , as well as knowledge of state and local planning and permitting processes .
Of course , the taking itself implicates a number of diverse fields . Depending on the location of the property , and the type of infrastructure planned , issues related to geography ( elevations and topography ), hydrology ( stormwater management / drainage ), and ecology ( wetlands and protected species ) may exist . Attorneys for both sides must be versed in , and thus prepared for , various issues related to these fields .
Then comes the valuation . Both sides ’ attorneys must be proficient with appraisal theory and the approaches used to value property . Demographics , statistics , and economics can all play a role in deriving market value . When improvements are impacted , cost estimating comes into play . When a “ cure ” is necessary to restore site functionality , the same land-planning and engineering issues discussed above are implicated . If a business is present on site , expected losses may need to be calculated , triggering accounting and finance principles . And when proceeds are paid , tax consequences come into play .
The above fields are far from an exhaustive list . Every case is unique and can implicate a handful of property and non-property related disciplines , legal or otherwise . For example , issues of constitutional law , boundary and easement law , water and riparian rights , state and local permitting , regulatory and environmental compliance , title issues , tax consequences , business practice / valuation , and even estates and probate / intestacy rules can come into play . For this reason , I find the practice especially gratifying ; rarely is there a day I don ’ t have an opportunity to learn something new . n
Author : Ryan C . Reese – Moore Bowman & Reese , P . A .
N O V - D E C 2 0 2 1 | H C B A L A W Y E R 2 9