Constitutional bases in Louisiana
The Declaration of the Right to Property in the 1974 Louisiana Constitution provides:
Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
Property shall not be taken or damaged by the state or its political subdivision except for public purposes and with just compensation paid to the owner or into court for his benefit …. In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss.
La. Const. Article I, § 4.
Eminent domain is the taking of private property for public purpose – roads, levees, schools, parks, public buildings
What is a public purpose? – Fifth Amendment requires taking be for public purpose
September 28, 2004 – Supreme Court agreed to hear a case regarding when the government may take property. Kelo v. New London - Connecticut residents whose property was taken to build a riverfront hotel, health club and offices to be owned by private persons. Connecticut Supreme Court voted 4-3 that the additional tax revenue to be generated constituted a sufficient public purpose .
Can’t challenge taking except based upon challenge to public purpose, which rarely works – can take property against landowners’ wishes. Public purpose is interpreted broadly – doesn’t even have to be open to public
Who may take – government agencies (DOTD, levee district, corps on federal level), utility companies (Entergy), railroads, how far does it go – issue on quasi-public companies and private companies
How compensation is calculated?
Have to pay “just compensation” or to “full extent of loss.” Full extent of loss means the amount of money which will place the owners in as good a position as they would have been in if their property had not been taken. No compensation for those subjective items like inconvenience, mental anguish, worry, anxiety
Just compensation
Fair market value – is the market value of the land determined as of the time of the taking without considering any change in value caused by the proposed improvement for which the property is expropriated. Usually based upon testimony of expert appraisers. Three approaches: (1) comparable sales; (2) income; (3) cost. Usually comparable sales approach is utilized.
Severance damages – the decrease in market value of the remainder of the landowner’s property that has not been taken, that is caused by the taking
Delay damages – “compensable damages for property taken out of commerce for an unreasonable length of time pending expropriation or completion of a project.” State, Dept. Of Transp. and Development v. Stone, 96-672 (La.App. 5 Cir. 3/25/97), 692 So.2d 1241.
Five factors for determining delay damages:
- Was there a delay in the project?
- Was there a reasonable expectation that the project would receive a permit?
- What was the period of the delay?
- Who is legally responsible for the delay?
- What is a fair and reasonable calculation of the loss suffered as a result of the delay?
State, Dept. of Transp. and Development v. McMillion Dozer Service, Inc.,
93-590 (La.App. 5 Cir. 5/31/94), 639 So.2d 766.
Quick taking (or early occupancy) versus ordinary taking – in quick taking, title passes immediately
Quick taking litigation steps are similar across the country -
If a government acquisition, such as a taking by the city, parish, levee board, etc., governmental body passes resolution that taking is necessary
appraisal – landowner must permit appraisers to enter property
Land value – generally done by comparable sales analysis – property with same highest and best use – size and use and zoning – adjustments to same. Improvements – sometimes valued with property, some separate – may give landowner right to remove improvements within a certain amount of time. Offsetting value of project may not be considered
Temporary rental – usage fee for storage or other use in aid of construction of project
Severance damages – if part of property is taken, damage to remainder not taken – based on loss of access, location of public work next to property, loss of visibility, changes in highest and best use. Enhancements in value as a result of the project may be considered offer to landowner – negotiations – offer must include the appraisal figures DOTD has offer letter and appraisal and just compensation forms it uses on line at http://www.dotd.louisiana.gov/highways/project_devel/realestate/realestate.asp?page=acquisition rejection of offer leads to lawsuit filed by governmental agency – state court. With lawsuit, agency deposits what it believes to be just compensation for the property – Title passes upon deposit – government will give a brief time to move improvements or relocate if necessary
Landowner must answer suit in order to obtain additional compensation and must request additional damages and fees and costs – time to answer may vary but usually one year from date of notice of substantial completion of project
May request other damages resulting from construction of project
Litigation ensues – either party is entitled to a jury trial
Litigation matters and strategies -
Appraisers – valuation methods – comparable sales, income, construction
Other experts – traffic, architect, relocation, engineers, experts re: lost income
If value deposited by the government is less than the amount awarded by the jury or court, landowner also gets attorneys’ fees, and costs (including expert fees) and interest on all outstanding amounts from the date of the deposit of the funds into the court registry.
Inverse condemnation
May be compensated for governmental taking of land performed without a formal proceeding. La. Const. Art. I, Section 4
What is a taking?
3 part test: 1) the plaintiff’s claim involves a property right; 2) the plaintiff’s property right was “taken or damaged in a constitutional sense;” and 3) the taking or damage was for a “public purpose.”
State, Through Dept. of Transp. and Development v. Chambers Inv. Co. Inc., 595 So.2d 598 (La.1992)
Government liability is limited “to those instances where there is a physical taking or damage to property or a special damage peculiar to the particular property and not general damage sustained by other property similarly located.”
Courts look at “whether that damage is not suffered by those in the general neighborhood–that is, whether the damage is peculiar to the individual who complains.” Reymond v. State, Through the Department of Highways, 255 La. 425, 231 So.2d 375, 383 (1970)
Damages such as the noise of traffic, a less pleasant view, and a circuitous or more inconvenient route to petitioner’s property, even when these factors resulted in an actual diminution of market value of the property, were not in themselves special damages and were not recoverable. Reymond v. State, Through the Department of Highways, 255 La. 425, 231 So.2d 375, 383 (1970)
Damages “which cause discomfort, disturbance, inconvenience, and even sometimes financial loss as an ordinary and general consequence of public improvements are not compensable, and are considered damnum absque injuria [loss without injury in the legal sense].” Reymond v. State, Through the Department of Highways, 255 La. 425, 231 So.2d 375, 383 (1970)
A public body has the right, under its police power, to divert traffic without subjecting itself to liability. Ramelli v. City of New Orleans, 233 La. 291, 96 So.2d 572, 574 (1957).
Landowner’s right of ownership is also limited by Civil Code articles 667 and 668, which require that he tolerate some inconvenience from the lawful use of a neighbor’s land. When the neighboring land is owned by the State, those articles are no less applicable. State, through the Department of Transportation and Development v. Chambers Investment Co., Inc., 595 So.2d 598, 604 (La.1992)