Condemnation/Eminent Domain
Several members of Butler, Vines and Babb represent landowners whose property has been taken by the government through the exercise of the power of eminent domain. Under the Federal and State Constitutions, landowners are entitled to “just compensation” when their property is taken from them by the government. Even though the government brings suit against the property owner, under Tennessee law the landowner has the burden of proving the fair cash market value of the property taken (and incidental damages, if any, to the remaining property).
Having your farm, house, business or other property involuntarily taken from you can certainly be both stressful and financially devastating. The condemning authority, whether it is the Tennessee Department of Transportation (TDOT), or other state, federal or local governmental agency, will begin making contact with you once your property has been identified as needed for the public improvement project. During these preliminary contacts, steps taken by the landowner can influence the amount that you will ultimately receive for your property.
Experience
Mark C. Hartsoe has extensive experience representing condemning authorities and landowners in land condemnation/eminent domain cases. Prior to joining the firm, Mr. Hartsoe represented the State of Tennessee (TDOT). During that period, he tried numerous jury trials related to the fair market value of properties. In addition to his extensive jury trial experience, he has also negotiated the acquisition of a substantial number of parcels, including farm, residential, commercial and industrial properties. Mr. Hartsoe has lectured the Tennessee Municipal Attorneys Association on eminent domain trial practice and strategy. Additionally, Mr. Hartsoe was hired as outside counsel by the City of Knoxville in the multi-million dollar Woodfam litigation.
Mr. Hartsoe now exclusively represents landowners whose property is sought to be taken from them by the government through eminent domain. His extensive experience and understanding of the process from the condemning authority perspective give him a unique insight which he uses for the benefit of landowners.
Recent Condemnation Cases Handled By Mark C. Hartsoe
1. First Utility District v. Sara Ralston Mailen (Knox County Circuit Court).The condemning authority deposited $467,000 to take a portion of a family farm that had been owned since prior to the Civil War.After extensive discovery and pretrial litigation, the case settled on the eve of trial after First Utility District agreed to pay an additional $1,032,000.
2.Gatlinburg Airport Authority v. Summitt (Sevier County Circuit Court).The Gatlinburg Airport Authority sought to condemn 25 acres of the Summitt family farm for a runway extension.The defendant landowners objected to the taking, raising environmental and other grounds challenging the necessity of the taking.No order of possession was entered for the next four years despite repeated attempts by the airport authority to do so.Extensive discovery was taken. The parties ultimately agreed to a greatly reduced taking which permitted the continued ownership and agricultural use of a significant portion of the property sought to be condemned.
3. State of Tennessee v. Cargo Oil Company (Knox County Circuit Court).The State sought to condemn this convenient store for an Alcoa Highway road widening project.We objected to the condemnation asserting that it was arbitrary and capricious to proceed with the involuntary taking without having the construction funding in place and environmental work completed (essentially an advanced acquisition).After the landowner objected to the taking and sought to take discovery on this issue, the State of Tennessee nonsuited the case.
4. (TDOT) State of Tennessee v. Knoxville Poultry & Egg Company (Chicken City) (Knox County Circuit Court).The Tennessee Department of Transportation condemned this property for the James White Parkway extension.Prior to trial, a settlement was reached wherein the landowners received one-third (1/3) more than TDOT deposited into court (a $155,000 increase).
James C. Wright, another one of the partners of Butler, Vines and Babb, has represented landowners throughout the State of Tennessee in eminent domain actions brought by TVA, MDHA, TDOT and other condemning authorities. His background in environmental law has been particularly helpful in several of these cases.
The Process
Once a governmental entity has decided to take a landowner’s property, the landowner should take steps to position themselves to maximize their recovery, either through negotiation or litigation. The condemning authority is likely to make contact with the property owner on numerous occasions during this process. Steps taken during the pre-condemnation period oftentimes can impact the ultimate outcome of a case.
Typically the condemning authority will hold public hearings for affected property owners in which information regarding the proposed project will be provided. Once the acquisition process is underway, the condemning authority will seek access to inspect your property so that an appraiser can evaluate the land and improvements sought to be acquired. While the circumstances of each case and property are different, your contact with the representative of the condemning authority begins the process. Depending upon whether or not it is a partial take or a complete acquisition, the condemning authority may be in the position of offering business relocation assistance as well as moving expenses. At times, the condemning authority may be willing to entertain suggestions regarding slight design modifications if it is just a partial acquisition so that your utilization of the remaining property can be enhanced. All of these issues require the early involvement of an experienced condemnation/eminent domain attorney.
Valuation
Landowners have a right to offer testimony regarding the value of their property under Rule 701(b) of the Tennessee Rules of Evidence (a witness may testify to the value of the witness’ own property or services). However, the crux of any eminent domain case involves the battle of each side’s appraisal testimony. Under the State Licensing and Certified Real Estate Appraisers Law, certified appraisers may give testimony regarding the value of a the subject property. The appraisers typically use one of the three standard appraisal approaches: the market approach, the income approach and the cost approach. Most often, the fair market value will be established through the market approach which involves the use of “comparable sales.” Insofar as no two pieces of property are identical, the utilization of this approach commonly creates great variance in opinions. Appraisers make “adjustments” to account for property variability, which is somewhat subjective. Appraisers will also value the property as of the “date of possession” which is a date in which the Court transfers possession of the property after the Petition for Condemnation is filed. Usually, the landowner is given just five days to object to the taking, if grounds exist, before an Order of Possession is entered. Evaluating the condemning authority’s appraisal as well as the proposed use and public necessity is critical to determine how to proceed with planning your defense to the condemnation/eminent domain case in order to maximize your recovery from the government.
Numerous issues can arise in cases which complicate the valuation issue, including environmental issues, leasehold interests, zoning, relationship to other public improvement projects (“scope of the project rule”), etc. Quite often the attorney representing the condemning authority will have extensive experience in the field of condemnation law. For example, members of the State Attorney General’s Office, Real Property and Transportation Division essentially handle only eminent domain cases. These lawyers will appreciate the nuances of cases; it is important that you have experienced counsel to ensure that those issues are evaluated from the landowner’s perspective to ensure maximum recovery.
Websites of Interest Regarding Eminent Domain
TDOT website - www.tdot.state.tn.us
MTAS website – www.mtas.utk.edu/public/web.nsf/search/eminentdomain?opendocument
Butler, Vines and Babb attorneys Mark C. Hartsoe and James C. Wright represent property owners in land condemnation/eminent domain cases. Click their name to review their profile and contact information.
The attorneys at Butler, Vines and Babb serve clients throughout Tennessee including Knoxville, Nashville, and Chattanooga, Tennessee.
