Like a lot of jurisdictions, Kentucky allows (or requires upon demand) the jury to view property being taken by eminent domain. In Kentucky, it’s a matter of statute, which requires the court to allow a jury view upon the demand of any party, unless “unusual or extreme circumstances” are present.

In Comm’w of Kentucky v. PTL Warehousing, LLC, No. 2019-CA-388-MR (Apr. 2, 2021), the trial court did not approve of the condemnor’s request that the jury view the site and the warehouse taken. The court concluded that a view would not be helpful to the jurors because “the jurors had likely eaten at an Arby’s which was located across the street from the subject property.” Slip op. at 3. The court asked the jurors whether they indeed had eaten at Arby’s. The court concluded they were already familiar enough with the property (the condemned property, not the Arby’s).

Trial, verdict, etc. The condemnor appealed, arguing the verdict was tainted because the jurors should have been allowed to view the property, even if they had visited the Arby’s across the street. Kentucky’s view statute says “shall,” and having dined at Arby’s is not an “unusual or extreme circumstance” supporting denial of a view. The owner argued that technological advances adopted since the time of the statute made an actual view somewhat unnecessary (just look online!).

The court of appeals rejected the argument that a view wasn’t required. The trial court had not shown unusual circumstances, and the availability of other ways to “see” the property don’t undermine the statute’s requirement for an actual viewing. Remanded, either for a viewing, or for findings by the trial court supporting a denial of a viewing.

But what about the fact that the warehouse was demolished by the condemnor and the lion’s share of the compensation awarded by the jury was for the damage to the warehouse? Not relevant, held the court of appeals, the lack of view was not harmless error. “Because there was also a value in the land seized and a valuation needed to be made as to the land that remained, a view of the land was relevant to a jury determination as to the amount of the loss.” Slip op. at 9.

Comm’w of Kentucky v. PTL Warehousing, LLC, No. 2019-CA-000388-MR (Ky. App. Apr. 2, 2021)