ALI-ABA Course of Study Eminent Domain and Land Valuation Litigation February 17-19, 2011 Coral Gables, Florida PROGRAM FACULTY PARTICIPANTS STUDY MATERIALS TABLE OF CONTENTS Page xiii xvii 1. Developments in Eminent Domain Law 2010 By Gideon Kanner 1 2. Fairness and Equity, or Judicial Bait-and-Switch? It s Time to Reform the Law of Just Compensation By Gideon Kanner 19 3. Defending Against Private Development: The Lessons of Eminent Domain and 59 Columbia University s Expansion Plan Submitted by Norman H. Siegel Study 61 Appendix: Petition for a writ of certiorari, in Tuck-it-Away, Inc. et al. v. New York State Urban Development Corporation d/b/a Empire State Development Corporation 64 4. The Interplay between the Fourteenth Amendment s Due Process Clause and the Fifth Amendment s Takings Clause: Is the Supreme Court s Test for Public Use Merely Rational Basis? By Alan T. Ackerman 209 5. Unique Pressure Points in Negotiation and Settling a Condemnation Case By Robert Denlow 229 6. Preparing, Strategizing and Trying the Condemnation Case By Robert Denlow 249
7. Winning the Battles of the Experts: Cross-Examination in Complex Cases By Edward G. Burg 273 8. Effective Voir Dire, Opening, and Closing Argument from a Property Owner s and Condemnor s Perspective By Joseph P. Suntum and Francis A. Cherry, Jr. 289 9. Special Assessments, Taxes, and Other Assorted Ways the Government Recoups Just 297 Compensation Payments By Gerald J. Petros Table of Contents 298 Hubbard et al. v. City of Pierre, South Dakota, 784 N.W.2d 449 (2010 S.D.) 299 Beutz v. County of Riverside, 109 Cal. Rptr. 3d 851 (Cal. Ct. App. 2010) 308 HTK Management, L.L.C. v. The Seattle Popular Monorail Authority, 121 P.3d 1166 (Wash. 2005) 322 The State of Washington v. Evans et. al., 966 P.2d 1252 (Wash. 1998) 346 Capital Properties, Inc. v. State of Rhode Island, 636 A.2d 319 (R.I. 1994) 364 Capital Properties, Inc. v. Supreme Court of Rhode Island, 749 A.2d 1069 (R.I. 1999) 368 10. Update on Exactions By Amy Brigham Boulris 381 11. Ethics for Everyone: Some Things Old, Some Things New 391 By Timothy P. Chinaris Study 393 Presentation Slides 403 12. The Trails Act: Railroading Property Owners and Taxpayers for More than a Quarter Century By Mark F. (Thor) Hearne, II, Lindsay Brinton, and Meghan Largent 437 13. The "Social" Lawyer: New Media Strategies for Marketing Your Eminent Domain 503 Practice By Nancy Myrland The Most Effective Social Media Tool You Will Need in 2011 Is... 505 The Best Online Social Network for Lawyers Is... 507 These Are Just Tools 509 Should You Be Using Social Media? 512 7 Steps to Success in Social Media 514
14. Transforming Business Development: Policy and Privacy By Jayne Navarre 515 15. The Social Lawyer : New Media Strategies for Marketing Your Eminent Domain Practice By Anthony F. Della Pelle 531 16. The Social Lawyer : New Media Strategies for Marketing Your Eminent Domain Practice By Robert H. Thomas 539 17. Economically Impoverished Federal Circuit Decisions dim the Polestar of the Penn 545 Central Test By William W. Wade Study 547 Appendix A: Federal Circuit s Economic Failings Undo the Penn Central Test 573 Appendix B: Penn Central s Ad Hocery Yields Inconsistent Takings Decisions 581 18. Rethinking Concepts Chiseled in Stone By Jeremy P. Hopkins 593 19. Challenges and Issues Facing Our Development of Transportation across the Nation: Downsizing the Right of Way Organization By Richard R. Bennett 639 20. Challenges and Issues Facing Our Departments of Transportation: The Relocated Homeowner Dilemma By John L. Garner 643 21. Challenges and Issues Facing Our Departments of Transportation across the Nation: The Exposure of Departments of Transportation to Attorney s Fees and Costs Impacts the Handling of Eminent Domain Litigation By Larry D. Tannenbaum 647
22. Using Retail Sales to Support Market Value of a Shopping Center By Raymond T. Cirz 657 23. Diamonds in the Rough: Creative Valuation Approaches for Difficult Properties By Anthony F. Della Pelle and Cory K. Kestner 663 24. High-Voltage Transmission Lines: Proximity, Visibility, and Encumbrance Effects on Residential Property Values (Valuation Approaches and A Case Study) By Frank A. Voorvaart 673 25. Proximity Damages from Transmission Corridors or Transmission Lines: The Test Used by Property Owners By Joseph T. Waldo and Joshua E. Baker 685 26. A Clean Look at Dirty Property: Emerging Issues and Common Problems When Valuing Contaminated Properties in Eminent Domain Proceedings By Jack R. Sperber 705 27. Right of Way Changes Without a Physical Taking: Is There an Inverse Condemnation Claim? By John R. Hamilton and J. Casey Pipes 723 28. The Fundamental Differences between Taking a Fee Simple and Creating a Leasehold via Eminent Domain By Carol L. Zeiner 751 29. Takings and Torts: The Role of Intention and Foreseeability in Assessing Takings Damages By James S. Burling and Luke A. Wade 773 30. What in the Constitution Limits the Power of Eminent Domain?-Supplemental By Alan T. Ackerman 795 31. Takings Law Update-Supplemental By Michael M. Berger 845
32. Cross-Examining Expert Witnesses in Complex Cases-Supplemental By Edward G. Burg 857 33. Diamonds in the Rough: Ways to Handle the Valuation of Difficult Properties-Supplemental By Raymond T. Cirz, Anthony F. Della Pelle, Nichole E. Jackson, and Harry J. Riskin 943 34. Using Retail Sales to Support Market Value of a Shopping Center-Supplemental By Raymond T. Cirz 953 35. Real Estate Terms and Concepts That Every Eminent Domain Lawyer, Appraiser, and Right-of-Way Agent Should Know-Supplemental By Leslie A. Fields and David Kuosman 967 36. What You Can Learn From How A Major Quick Service Restaurant Company Addresses Property Acquisition Issues-Supplemental By Leslie A. Fields and Kenneth S. Shiner 985 37. Right of Way Changes Without a Physical Taking--Is There an Inverse Condemnation Claim?-Supplemental By John R. Hamilton and J. Casey Pipes 1013 38. Understanding the Three Approaches to Value: How Appraisers Use Them; What Lawyers Need to Know About Them-Supplemental By Wayne Hunsperger and Jack R. Sperber 1055 39. Use of Exhibits to "Pack a Punch" in the Direct and Cross Examination of Expert Witnesses-Supplemental By H. Dixon Montague and Karen L. Brody 1167 40. The "Social" Lawyer--New Media Strategies for Marketing Your Eminent Domain Practice-Supplemental By Nancy Myrland 1203
41. Ways in Which Government Seeks to Recoup Just Compensation Losses-Supplemental By Gerald J. Petros 1241 42. A Clean Look at Dirty Property: Current Issues and Common Problems When Valuing Contaminated Property in Condemnation Proceedings-Supplemental By Jack R. Sperber 1319 43. High-Voltage Transmission Lines: Proximity, Visibility, and Encumbrance Effects on Residential Property Values (Valuation Approaches and a Case Study)-Supplemental By Frank A. Voorvaart 1371