The City of Virginia Beach is planning a road project to realign Princess Anne Road.  In order to do so they will need to take one-half acre of property from the historical Emmanuel Episcopal Church.  The city has offered to give the church $850, 000 and adjoining parcels of land that amount to around 2 acres.  If the road is paved it will sit 70 feet away from the Church’s Daycare Center.

The congregation at Emmanuel Episcopal Church and their Reverend John Baldwin are not letting go quietly and other local churches are rallying behind them.  Their resounding battle cry is to protect the 170-year old church and its land.

In response to the protests the City of Virginia Beach released the following response:

At various points during negotiations, in exchange for approximately one-half acre of property needed for the new street and sidewalk, the City has offered to:

Give the church more than $850, 000

AND

Give the church adjoining parcels of land consisting of between 1.5 and 2 acres with a usable commercial building. 

So far, an agreement has not been reached.

The half acre acquired for the new street and sidewalk consisted of a storm water pond and about 20 parking spaces, but none of the church building.

We are working to balance the interests of all the citizens of Virginia Beach, whose tax dollars are funding this settlement, against the need to preserve and protect a vital part of the Kempsville community.

There are numerous child care facilities – not to mention homes where children live – in this city that are less than 70 feet from streets. Those facilities are run safely, and the children in the homes are safe.  We have every confidence that the church will be able to do the same thing.

While we continue to talk about the proper amount of compensation, there is no disputing that the city will fairly compensate the church in some fashion.

At the time the church was told the project was not moving forward, it was not.  The project was on hold because there was no funding.  To get the project done,  the city asked the Virginia Department of Transportation (VDOT) and the federal government for funds.  As a result, VDOT went through a public hearing process, presenting several alignments.  Following this public input, VDOT selected the current option.

The design and alignment of this intersection was determined by VDOT with community input.

If an agreement cannot be reached a trial will be set for this October.

We support the intent of Emmanuel Episcopal Church and their need to protect their facilities and congregation.  The Government’s attempt to mischaracterize the property that they are taking is typical.  The government must consider not only the property that they are taking but also the impact that the taking has on the remaining property.  An important part of representing property owners faced with a taking by the government includes understanding and explaining the damages to the property that was left behind.

As experienced condemnation attorneys we encourage the Government to reconsider the impact that their taking will have on the remaining property and fully and fairly compensate Emmanuel Episcopal Church in this project.  If the government is unwilling or unable to fairly compensate this church, then the good citizens of the jury will do so.

To follow this story visit Emmanuel Episcopal Church’s blog.

There was a huge win for a youth center in California last month.  A California judge has ruled in favor of the youth center in its fight against a San Diego suburb that wanted to take over the property.

The Community Youth Athletic Center, which runs a youth boxing gym, sued National City in 2007 after the city renewed its eminent-domain authority over a redevelopment zone that encompassed about 700 properties.

The gym’s attorneys argued that the city abused its eminent domain powers and didn’t allow enough time for opponents to object.

National City wanted to make way for a 24-story, mixed-use condominium project that has since been derailed.

The Private Property Rights Protection Act (

The bill was created to minimize the abuse of government’s condemnation power to use eminent domain for economic development.  More specific “public purpose” activities are not under the umbrella of the bill, including the construction of roads, hospital facilities, airports or military bases.

Powerful developers and other politically-connected people and companies are the ones that gain the most from the use of eminent domain for economic redevelopment; they are the ones that prosper at the expense of those who are poor or week.  Law makers say that support for the bill will even the playing field, giving the poor and minorities a chance.

The bill comes seven years after the controversial ruling in Kelo v. The City of New London, where the U.S. Supreme Court affirmed the right of cities to use eminent domain to secure land for proposed private commercial development.  In response to the ruling, more than 40 states have amended their eminent domain laws, limiting their government’s power. 

An even more powerful eminent domain bill was approved by The House in 2006, but was never considered by the Senate.  The current bill will now move on to the Senate for consideration.   

Great news for North Carolinians, eminent domain reform is getting the attention it deserves.  It has been a long fought battle to get the North Carolina Legislature to amend the State Constitution to limit government’s authority in taking private property.

Last Thursday the members of a Senate subcommittee sounded supportive of placing the proposed constitutional amendment about eminent domain on the ballot. The General Assembly reconvenes next month where the panel will make recommendations.

The House approved bill will ask voters to decide whether private property condemnation by state or local governments should be barred except for a “public use.”  Similar proposals passed the House in recent years but died in the Senate.

After the 2005 Supreme Court ruling in Kelo v. The City of New London, condemnation laws began to change all over the country.  North Carolina seems to be on track to join the many states that already have.

When the government has condemned you land this is often referred to as eminent domain.  When faced with eminent domain, you should consider obtaining the assistance of a condemnation attorney.  Before you choose a condemnation lawyer to represent you, there are some questions that you may want to ask the attorneys you are interviewing:

1. What is their experience with eminent domain law?  As a property owner that’s faced with condemnation one of the most important decisions you have to make is the attorney that will represent you.  Their experience in handling cases like yours and their overall experience with eminent domain and condemnation will go a long way in how successfully they represent you.
2. How many eminent domain cases have they taken to trial?  There are many instances of eminent domain cases settled out of court.  But more often the case must be taken to court in order to achieve the full compensation that the property owner is entitled to.  The number of times that an attorney has gone to trial is a tell-tale sign of their experience and puts you in a better position as a property owner.
   
3. What types of properties have they handled?  An attorney that has handled cases for a wide variety of types and sizes of properties will have well rounded experience.
   
4. How much time is devoted to representing landowners in condemnation cases?  Eminent domain/Condemnation is a highly specialized area of the law with many loopholes and complexities. As a property owner, you will want to hire an attorney that regularly handles eminent domain cases.
   
5. Have they handled cases like yours?  No two condemnation cases are the same, just like property.  However, there can be similarities, which would make an attorney more experienced with the specific circumstances surrounding your case and property.
   
6. Do they represent property owners, the government, or both?  The term conflict of interest could apply here.  If an attorney has handled cases for the government they may by friendly with the condemning authority and/or the opposing attorney. Be aware of this situation and decide whether or not you are comfortable with it before hiring an attorney.
   
7. What are the attorney fees and what do they cover?  An appropriate fee arrangement depends on the facts and circumstances of each case.  Some attorneys charge by the hour, which can lead to time spent on the case being more than dollar amount received.  Other eminent domain lawyers work on a contingent fee basis.  Fees should cover all work conducted through trial.  Other costs include appraisals, depositions and expert witnesses that usually have to be paid by the property owner.  Weigh the costs and make sure that you choose the situation where your expenses are less than your possible compensation.
   
8. Are there any clients you can talk to as references?  The reputation and personal accounts of how an attorney has handled other condemnation cases can say a lot about their experience and ability with eminent domain law.
   
9. Are there any appraisers you can talk to as reference?  Most condemnation cases involve an appraiser.  The appraiser estimates the fair market value for the property.  You want an appraiser with eminent domain experience that has worked with attorneys.  If they have worked with that attorney they can also attest to the experience and knowledge of the attorney.

Choosing an attorney to represent you is quite possibly the most important decision you’ll make when faced with condemnation.  Experience is the reigning theme of these questions.  The attorney you choose should be well versed with eminent domain law and have your best interests in mind at all times.  The eminent domain attorneys at Fisher Stark Cash, P.A. have experience with eminent domain law.  If you are facing condemnation and have questions call us today to see what we can do for you, 828.505.4300. 

We proudly serve the communities of North Carolina including Buncombe County, Cumberland County, Durham County, Haywood County, Catawba County and Henderson County.

Minnesota landowners have reason to fear that mining companies may use eminent domain to take their land.  While property owners own the surface land and their homes, they don’t own the minerals beneath it.

The mineral rights are currently owned by the Minnesota Department of Natural Resources.  But they are leasing those rights without notification to the property owners.  Although the sale of mineral rights is prohibited by Minnesota Law, it does not prohibit leasing.  With these mineral rights the owner can explore for minerals and mine.  The residents that built on the land own the surface rights but that may not prevent the mining companies from taking their land through eminent domain.  The mining companies would then have to pay for damages to the surface.  It is unclear whether the land owners at one point or another had an opportunity to purchase mineral rights and the reasons behind not taking such precautions.

Some landowners believe that a 2006 state law that prohibits taking land by eminent domain for economic development purposes should protect their property rights.  When they heard their leases were going up for sale, they appealed to the state’s Executive Council, which must approve mineral leases.  The council delayed the sale of the leases to give them time to push for a change in state law.

The landowners have reached out to Rep. Nora Slawik.  Slawik sponsored a bill that would prohibit the use of condemnation to take land if no agreement is reached.  They did not get a hearing and now she is asking the attorney general to issue an opinion on whether the state’s eminent domain laws could be interpreted in the landowners’ favor.

We believe that no one should have their property taken unless it is for a public purpose and full and just compensation is paid.  North Carolina citizens have this right protected in the North Carolina Constitution.

If you have condemnation questions, please feel free to call the eminent domain attorneys at Fisher Stark Cash, P.A. at 828.505.4300.

Are there no limits or requirements?  Blight is so vague that any property could be characterized as blighted if you nit-picked it long enough.  We’ve seen it before in the case of Kelo v. City of New London where property was taken for a redevelopment project.  Private corporations are lobbying the government for these properties in the name of economic development; just another example of the rich getting richer and getting exactly what they want.  They have the money and therefore the power to coerce the government to interpret even the Constitution so that it benefits them.  Leaving the poor and politically weak exactly where they are, except this time landless.

Kelo isn’t the first example of a famous economic development taking in American history.  The 1981 Poletown case involved the building of a General Motors factory.  In this case 4,000 people lost their homes.  The Pfizer Corporation was behind the taking of Ms. Kelo’s now famous pink house.  And in Mississippi, Nissan and Toyota are responsible for recent condemnations.

After all that lobbying and promised money, jobs and tax benefits, you would think they would follow through.  But the reality is the new owners are usually not required to actually produce the development they promised.  These so called “economic development” condemnations often destroy local economies by wiping out neighborhoods, small businesses and schools.  Ms. Kelo’s property and the surrounding properties are now just barren, vacant land and have recently been designated a site for dumping the debris from Tropical Storm Irene.  The new factory built in the Poletown case only produced half the jobs it originally promised.

No one argues that struggling cities or states don’t have a right to improve themselves through redevelopment. But care must be taken that that right doesn’t extend to land seizures from which politically connected players stand to gain far more than the general public.

Most people have heard of eminent domain; the taking of ones land by the government.  And when a government takes a property owner to court to take that land it’s called “Condemnation.”  Inverse Condemnation is a little different.  In this case, a lawsuit is brought by a property owner seeking compensation for land taken for a public use by a government entity with eminent domain powers.  In order for the property owner to do this the government must have failed to follow formal eminent domain proceedings.  The property owner initiates the inverse condemnation and is the plaintiff in this case, making the order of parties reversed; hence the term “inverse.”  A property owner can also sue the government for the damaging of property.

So let’s take a look at the formal proceedings of eminent domain.  Under the rules of eminent domain, the condemning authority is supposed to declare a taking when it acquires private property without the owner’s consent.  That declaration when grants rights to the public property in the eminent domain process.  When there is no declaration, the law allows the property owner to seek a court order.  The property owner then declares that a taking occurred in order for the property owner to receive the rights and benefits of the eminent domain law.  The process for obtaining this order is called inverse condemnation.

What must be proved in an inverse condemnation action?

To recover on the grounds of inverse condemnation, the plaintiff must prove that:

• Their property was taken or damaged;
• They have an interest in the taken or damaged property;
• The government planned, approved, constructed, or substantially participated in a project or activity for public use; and
• The government’s activity was a substantial cause of the taken or damaged property

Because eminent domain, and especially inverse condemnation matters, are a very complex area of the law it is wise to seek the advice of a condemnation attorney.  And experienced eminent domain lawyer can help you understand how the laws affect your case.  They can also file any necessary paperwork and represent you in court.  It is very difficult to sue the government, and even more so for an inexperienced attorney.  Our condemnation lawyers have experience with eminent domain matters.  Choosing the right attorney can set you on a faster path to compensation recovery.  Call today for a free consultation at 828.505.4300.

We proudly serve the communities of North Carolina including Henderson County, Buncombe County, Cumberland County, Durham County and Orange County.

When the government condemns your property under eminent domain laws they are required to pay you just compensation.  They will usually bring out a registered agent to appraise your land, but you don’t want to accept this offer.  Here’s why:

The registered agent or appraiser that the government hires will usually price your land under fair market value.  The government wants to save money.  You want to have an appraiser you’ve hired determine the value of your land.  An experienced appraiser can accurately determine the fair market value of your land.

Often times the government’s appraisers miss severance damages, access issues and other important elements in determining fair compensation.  The exclusion of these costs drastically affects the appraised value.  Your compensation should be the maximum value of your land.  An appraiser with your best interests in mind will determine the compensation you are entitled to.

Selecting the right appraiser will also help you get just compensation.  Experience is very important, especially because they may become part of the trial process.  Because eminent domain appraisals are not that common, finding an appraiser with this expertise can be difficult.  When doing your research it’s important to ask about their eminent domain experience, including assessing damages. 

The appraiser you DO NOT want to select is one with a lot of eminent domain experience that usually appraises for the government.  So in doing your research, ask which side they’ve usually been on.  If they’ve worked for the government the chances are they have some sense of loyalty to them.  And because they so often under value land, they are less likely to determine the true value.

So once again, do not accept the offer given to you by the government.  The offer they give you is usually much less than your land is worth.  Not only do you want to hire the right appraiser, but you also want an experienced condemnation attorney by your side.  The eminent domain attorneys at Fisher Stark Cash can help you find a qualified appraiser with eminent domain experience.  With both on your side, your chance at receiving just compensation for your property may be significantly increased.

If you have eminent domain and condemnation questions, call the condemnation attorneys at Fisher Stark Cash, P.A. today at 828.505.4300.  We proudly serve the communities of North Carolina including Buncombe County, Cumberland County, Haywood County, Wake County and Henderson County.

Generally, takings claims arise two ways:

1. Physical taking – when the government encroaches upon private land for its own proposed use.
2. Regulatory taking – the government actions do not encroach upon or occupy the property but still affect and limit its use to such an extent that a taking occurs.

There are several types of takings which can occur through eminent domain:

Complete Taking - In a complete taking, all of the property at issue is appropriated.

Partial Taking - If the taking is of part of a piece of property, such as the condemnation of a strip of land to expand a road, the owner should be compensated both for the value of the strip of land and for any effect the condemnation of that strip has on the value of the owner’s remaining property.

Temporary Taking - Part or all of the property is appropriated for a limited period of time. The property owner retains title, is compensated for any losses associated with the taking, and regains complete possession of the property at the conclusion of the taking. For example, it may be necessary to temporarily use a portion of an adjacent parcel of property to complete a construction or highway project.

Easments and Rights of Way - It is also possible to bring an eminent domain action to obtain an easement or right of way. For example, a utility company may obtain an easement over private land to install and maintain power lines. The property owner remains free to use the property for any purpose which does interfere with the right of way or easement.

If your property has been condemned by the State of North Carolina or any other governmental authority, the condemnation attorneys at Fisher Stark Cash, P.A. will help you understand your rights as a property owner and what is involved in the condemnation process.  We can help you receive full compensation for your property.

Our eminent domain attorneys represent private property and business owners throughout Western North Carolina including Asheville, Hendersonville, Waynesville, Brevard, Morganton and Hickory.  Please call today for a free consultation, 828.505.4300.