One of the trickiest circumstances to deal with in an eminent domain case occurs when the property being condemned suffers from a contamination issue. This presents a number of thorny issues and, quite frankly, is an area of law which is shockingly undeveloped in most jurisdictions.
- Should the cost of the remediation be offset from the value of the property?
- Should the contamination be ignored since the owner is being compelled to "sell" the property, often against his or her will?
- Should the appraisers treat the contamination as they would any other circumstance affecting the property, to the extent it has a cognizable impact on fair market value?
Not surprisingly, landowners and agencies tend to view the correct result in this circumstance quite differently, with landowners claiming that contamination should be ignored, while agencies argue that the remediation cost qualifies as an offset from the award of just compensation.
I probably align most closely with the third option described above, though I can see valid arguments for each of the three views, depending on the particular facts of the case. If you have thoughts on this issue or just want to hear others arguing about it, I'll be speaking about it next week at the IRWA International Education Conference in Seattle.
Our session, Who Pays for What? The Intersection of Condemnation and Contamination, is on Tuesday, June 12, from 3:30 to 5:00 p.m. I'll be speaking with fellow eminent domain blogger Dan Biersdorf (left) from Biersdorf & Associates. And if that isn't reason enough to attend, MAI appraiser Orell Anderson (right) will be moderating, directing, and otherwise acting as puppet master.
In the meantime, if you want more information on the educational sessions at the Conference, the details are available on the IRWA website. I hope to see you in Seattle.
Rick Rayl is an experienced litigator on a broad range of complex civil litigation issues. His practice is concentrated primarily on eminent domain, inverse condemnation, and other real-estate-valuation disputes. His public ...
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