Arizona Eminent Domain Lawyer & Attorney : Zeitlin & Zeitlin Law Firm : Condemnation, Valuation, Property Disputes

The Scottsdale City Council last week approved the settlement of a condemnation action it had filed against  CGP-Aberdeen for the principal amount of $7,500,000, plus interest of approximately $790,000, for a total settlement amount of $8,290,000.  The property owner was represented by Dale Zeitlin.

The City had filed a lawsuit against the property owner on January 1,2003, which under Arizona law established the date of valuation.  The City, however, did not ask the court to take early possession of the property until July 2004 at which time the City paid $4,000,000 (the City's appraised value for the property)to the property owner, a delay of eighteen months. 

Mr. Zeitlin argued that the statutory date of valuation when applied to a factual situation where the government delays taking possession of the property for a lengthy period of time was unconstitutional. The trial court rejected this argument, but on appeal, the Arizona Court of Appeals agreed with Zeitlin's argument and held that property must be valued when the government takes possession of the property and first pays its estimate of just compensation.  Thus, the valuation date was not January 2003, but July 2004, a date when values were significantly higher.

The settlement was reached using the July 2004 date of value.

This case also has significance to every condemnation case that is filed by Arizona Public Service or other governmental entities that do not have the right to take immediate possession of property.  In all of these cases, the property owner will be able to argue for a later date of value.  APS had filed amicus curiae briefs opposing using the later date of valuation throughout the appellate process.

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The Wall Street Journal reported this morning on the imprisonment of a husband and wife who were trying to stop a development company from taking their property without paying just compensation.  The couple was charged with the criminal offense of "obstructing official business".  Confiscation of homes was prevalent as China prepared for the Olympics.

For example, the Journal reports that another couple has fought for compensation for seven years and has been under surveillance ever since.

Thank goodness we have the Fifth Amendment in the United States and a judiciary that is willing to ensure that property owners can have a fair jury trial to determine just compensation.  A property owner can stand up to various sorts of  government projects as unconstitutional:  urban renewal projects have been stopped when courts have found that they do not serve a public purpose.  And even in questionable types of takings, such as new baseball stadiums that have been constructed using public monies, ie., the Washington Nationals new ballpark, property owners have been fairly compensated for the takings of their properties. 

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The City of Scottsdale voted to pay the full jury award, plus statutory interest, which amounted to $92,000,000.  The City decided to pay the judgment rather appeal the jury's award.

The jury award was the largest award in the history or Arizona trials in eminent domain actions. This was also one of the largest jury verdicts in the United States for trials that occurred in 2008.

The City had condemned Toll Brothers' land that Toll had planned to development into a high-end residential single family community.  Toll's land was condemned for the McDowell Sonoran Preserve, a  project where the City wished to preserve desert land in its natural state and prohibit development.The City had appraised the 383 acres for  $82,000 per acre or  about $31,000,000. 

The jury rejected the City's appraisal, and found that the fair market value of the land was about $214,000 per acre, or $82,000,000. Although the City threatened to appeal, the City ultimately realized that the jury's decision was fair and that it did not have a viable appeal.

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The DC court ordered that the District of Columbia produce a secret agreement , known as a "Mary Carter Agreement" between the District and one of the property owners in a condemnation of properties for the new baseball stadium in downtown District of Columbia.

Dale Zeitlin, who represents  one of the largest properties that is being condemned, asked the court to produce the agreement because it could have the effect of prejudicing his client's right to a fair trial on the issue of just compensation.

The court did the right thing and ordered the production of the secret agreement.

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The  jury, in the condemnation case between the City of Scottsdale and Toll Brothers, awarded Toll nearly $82,000,000 for its property, which the City had taken in 2004.  This is the largest jury verdict in Arizona history in a condemnation case.

The jury deliberated for two days before reaching its verdict.

The jury reached a fair and reasonable result and I applaud the jury for doing so.

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