On January 15, 2010 the United States Supreme Court will consider “in conference” whether to hear an important eminent domain case. One common condemnation fact pattern is where a property is the subject of a “partial condemnation” – part of the property is taken – where one of the driveways is closed or moved. This change in access can significantly impact the value of a property. However, most states do not necessarily permit a property owner to include damages attributable to a change in access as part of the condemnation damages. Rather, the law in those states is that as long as there remains “reasonable access” after the condemnation, the condemnee is not entitled to change in access damages. Of course, there are numerous exceptions to this general rule. However, many property owners believe that the general rule is fundamentally unfair and that these damages should be included without needing an exception.
In Kimco of Evansville, Inc. v. State of Indiana, a shopping center owner alleged that its property suffered a diminution in value due to change of access to the abutting roadway. The jury returned a verdict of $2,300,000. The State of Indiana appealed claiming that this amount improperly included damages due to the change in access. Ultimately, the Supreme Court of Indiana agreed with the State and remanded the case to the trial court for re-determination of the proper amount of damages.
The property owner filed a “Petition for Writ of Certiorari” asking the United States Supreme Court to hear the case. I was asked to file an “amicus” brief in support of the property owners by the International Council of Shopping Centers and the National Association of Real Estate Investment Trusts. Regardless of your opinion regarding this issue, it is one that arises frequently. Therefore, I believe it is important that the Court consider and decide the issue.