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Articles by Michael Rikon
The Partial Taking
Condemning authorities do not always take an entire parcel in an eminent domain proceeding. Indeed, in the Court of Claims, the majority of the appropriation claims are partial takings arising in the context of a highway project. Partial takings may also occur in the context of takings for sewer lines, electrical transmission lines or—as is the subject of recent nationwide proposals—pipelines.
Valuing Property in the Course of Development
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Filing a Condemnation Claim in New York
Premium Subscription With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas. View Now Team Accounts Our Team Account subscription service is for legal teams of four or more attorneys.
Specialty Property: The Cost Approach in Estimating Value
From Data to Decisions Dynamically explore and compare data on law firms, companies, individual lawyers, and industry trends. Exclusive Depth and Reach. Law.com Compass includes access to our exclusive industry reports, combining the unmatched expertise of our analyst team with ALM’s deep bench of proprietary information to provide insights that can’t be found anywhere else.
Urban Renewal, an Assault on Black Neighborhoods
The Federal Housing Act of 1949, which was in effect from 1949 through 1973, authorized cities to use the power of eminent domain to clear “blighted neighborhoods” for “higher use.” According to an excellent paper published by the Institute for Justice, “Eminent Domain and African Americans,” written by Mindy Thomson Fillilove, in 24 years, 2,532 projects were carried out in 992 cities that displaced one million people, two-thirds of them African American.
Widespread Racial Bias Found in Home Appraisals. Increasing Diversity Will Diminish This Bias.
In September 2021, Freddie Mac released a groundbreaking analysis of the United States home appraisal industry. It was found that homes in Latino or Hispanic neighborhoods are much more likely than homes in White neighborhoods to be valued below fair market value.
Supreme Court Weighs Wetlands Protection; New York State’s Wetlands Valuation
On Oct. 3, 2022, the Supreme Court heard argument in Sackett v. U.S. Environmental Protection Agency, ___ U.S. ___ (No. 21-454). The Sacketts bought their land in 2004 in a subdivision near Priest Lake, Idaho. They obtained the necessary permits to build a modest three-bedroom family home. In 2007 they began construction only to have EPA officials demand they stop, alleging that their land was protected wetlands under federal jurisdiction.
May a Religious Organization’s Land Be Condemned?
Yes, if the procedural and due process requirements of the Eminent Domain Procedure Law are complied with, a church or synagogue’s land may be taken by eminent domain. Religious organizations often allege that they are protected by the Religious Land Use and Institutionalized Persons Act (42 U.S.C. §2000cc et seq.). However, the Act only applies to a zoning and landmarking law. Case law provides that a government’s exercise of eminent domain does not constitute an application of a zoning law.
Valuation of Real Property When There Has Been a Recent Purchase Price
In any trial to determine the value of real property, whether it be an eminent domain taking, or an application to reduce assessed taxes, a recent sale of the parcel will be extremely relevant. If a sale was an open market transaction with a buyer under no compulsion to buy and a seller under no compulsion to sell, the transaction, unless explained away, will be considered a fair market sale at the time of the sale. Keator v. State of New York, 23 N.Y.2d 337 (1968). Want to continue reading?
Burden of Proof vs. Search for Highest and Best Use
A recent decision by the Fourth Department, West Gates CIP v. State of New York, __ A.D.3d ___, 2022 NY Slip Op 00597 (Jan. 28, 2022) affirmed an award in a partial taking which only awarded direct damages. The Fourth Department stated: “Contrary to claimant’s contention, the court correctly applied claimant’s burden of proof and determined that claimant failed to satisfy its burden of establishing indirect damages.
The Infrastructure Package Means Business for Eminent Domain Lawyers
After much debate, President Joe Biden signed a $1.2 trillion infrastructure bill (H.R. 3684) into law, finalizing a key part of his economic agenda. The vote in the senate was uncommonly bipartisan; the yes votes included Sen. Mitch McConnell of Kentucky, the Senate Republican Leader and 18 other Republicans. There is money for projects in most states which will require taking private property. The question is, is your office ready for the cases that will be coming? Want to continue reading?
East River Park Destruction: Not So Fast, The Public Trust Doctrine Controls
December 9, 2021 On December 7, 2021, I wrote a blog about the legal suit brought to stop the destruction of the East River Park in the Lower Eastside of Manhattan.
Recent Purchase Sinks a Tax Assessment Reduction Try
A decision by Judge E. Loren Williams (Westchester Supreme Court) in Cedar Manor Acquisition LLC v. The Assessor of the Town of Ossining (Index No. 62538/2020; filed 9/28/21) presents the problem in attempting to vary valuation of real property when it recently sold. In a well written decision, Justice Williams discussed the effort to reduce the taxes on property which was a nursing home business enterprise.
Notable Property Decisions From the U.S. Supreme Court
The U.S. Supreme Court handed down a number of significant decisions dealing with eminent domain this term. Power of Condemnation Can Be Delegated On June 29, 2021, the court decided PennEast Pipeline Co. v. New Jersey, 594 U.S. __ (2021). The court held that the federal government had properly delegated to private companies’ federal authority to condemn necessary rights-of-way in state owned property. Want to continue reading?
Why Nominal Damages Are Important
The Supreme Court recently held, 8-1, that a claim for nominal damages can save a §1983 federal court case from dismissal for mootness, Uzuegbunam v. Preczewski, 141S. Ct. 792 (2021 (U. v. P.). The court found that a nominal damage claim creates the necessary Article III case or controversy for standing and mootness purposes. Justice Clarence Thomas wrote the opinion for the court. Justice Brett Kavanaugh wrote a brief concurrence. Chief Justice John Roberts Jr. was the sole dissenter.
Two Lawmakers File Action Against NYPD Over Excessive Force at Protests
Kaplan Hecker & Fink is representing a pair of New York state legislators who say they were pepper-sprayed, kettled and rammed with New York City Police Department bicycles in May 2020 while peacefully protesting the police killings of Breonna Taylor and George Floyd. New York State Assemblymember Diana Richardson, D-Brooklyn, and Sen. Zellnor Myrie, D-Brooklyn, filed suit Monday in the Eastern District of New York.
Are Certain Candidates Beyond Redemption?
For many years I have had the genuine pleasure of co-authoring this column with Myrna Perez, who, as you probably know, is moving on. President Biden has nominated her for a seat on the U.S. Court of Appeals for the Second Circuit. I am thrilled for her and know she will be a first-rate judge. Congratulations Myrna! *** On May 4, 2021, Gov. Andrew Cuomo signed legislation making it easier for formerly incarcerated felons to vote.
First New York City C-PACE Financing Closes
Petros PACE Finance, a leading commercial property assessed clean energy (C-PACE) lender, closed the first New York City C-PACE financing in early June. The C-PACE loan of $89 million on an existing building in the Wall Street area will be used to make the building more energy efficient. By way of background, C-PACE is a type of financing for energy efficiency improvements that has several unique characteristics.
Bankruptcy Court May Be Effective Forum To Address Aggressive Action by State or State Agencies Given Recent Ruling on Waiver of Sovereign Immunity
The Eleventh Amendment preserves the rights of states to assert immunity from suits in federal courts. However, the sovereign immunity states enjoy is not absolute.
Understanding the Mortgage Recording Tax Credit Deadline Suspension
I am a sponsor of a new construction condominium plan in Manhattan. I understand that the Governor’s executive order suspended the deadline to take advantage of the mortgage recording tax credit. Can you explain the credit, the executive order, and how the suspension works? Answer N.Y. Real Prop.
Help Is On the Way: New York Enacts Pass-Through Entity Tax
Prior to 2018, a taxpayer could generally deduct his state and local taxes for purposes of determining his federal taxable income. Beginning in 2018, the Tax Cuts and Jobs Act (P.L. 97-115) significantly changed these rules by generally limiting an individual’s state and local tax deduction to $10,000 per year. Since the enactment of this rule, states with high income tax rates have been considering various ways to work around this limitation.
Remembering Chief Judge Robert A. Katzmann
We have written our monthly column addressing Second Circuit developments since November 1985, totaling 425 columns. Over the past 36+ years, we have had the privilege of reading more than 15,000 opinions, authored by 45 different Second Circuit Judges (in addition to Judges from other Circuits and District Courts, sitting by designation on the Second Circuit), covering every issue imaginable. We have observed the innovations and priorities of nine different Chief Judges.
Realty Law Digest
This decision involved a motion by defendants pursuant to the CPLR §3211, seeking to dismiss the complaint on the grounds that it failed to state a cause of action. The plaintiff cross‑moved, seeking summary judgment, arguing there are no issues of fact and they are entitled to the ultimate relief. The plaintiff, owner of the subject property (seller), entered into a contract with the defendant (purchaser), pursuant to which the purchaser was to purchase the property.
Emerging State-Level Environmental Justice Laws
Environmental justice (EJ) has grown in prominence in the political discourse in the last several years. While most of the attention has gone to federal actions, several states have just adopted their own laws to advance EJ.
The Right To Speak at a Public Hearing and the Steps To Challenge a Proposed Taking
Analysis Article 2 of New York’s Eminent Domain Procedure Law sets forth the prescribed way that property is to be acquired by eminent domain. Michael Rikon Before any property is condemned in New York, Article 2 of the Eminent Domain Procedure Law must be complied with. Article 2 of New York’s Eminent Domain Procedure Law sets forth the prescribed way that property is to be acquired by eminent domain.
A Recent Fix for Advance Payments and for Sandbagging
Analysis In this column on Condemnation and Tax Certiorari, Michael Rikon and Jonathan Houghton discuss the recent decision in 'Staten Island Land Corp.' which has done much to fix some of the problems with advance payments and sandbagging therein. Michael Rikon In the context of eminent domain, New York is a quick-take state. That means that the government can take title before it has paid for the property that it has taken.
Property Rights vs. Police Power: Who Compensates Me for My Losses?
Analysis In his column on Condemnation and Tax Certiorari, Michael Rikon examines how the line between an eminent domain taking and regulating property to prevent harm to the public interest starts to blur in connection with pandemic orders. Michael Rikon When government directly takes or inversely takes private property, our federal and state Constitutions require the payment of just compensation. But when property is taken for an emergency, the result may be different.
Highlights of SCOTUS's 2019 Term Dealing With Property Taking
Analysis In his Condemnation and Tax Certiorari column, Michael Rikon discusses three cases decided by the Supreme Court in 2019 regarding property takings: ‘Knick v. Township of Scott, ‘Timbs v. Indiana,’ and ‘Ceder Point Nursery v. Shirema'. Michael Rikon The most important case of the term was Knick v. Township of Scott, 588 U.S. ___ (2019). Want to continue reading? Become a Free ALM Digital Reader.
10 Cases Every Condemnation Lawyer Should Know Before Going to Court
Analysis In his Condemnation and Tax Certiorari column, Michael Rikon writes: Eminent domain, the awesome inherent power of the sovereign, has developed a distinct body of law. Practitioners in this area should be aware of the key holdings. In other words, don’t leave for the courthouse until you are familiar with the following cases. Michael Rikon Eminent domain, the awesome inherent power of the sovereign, has developed a distinct body of law.
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