Real Estate & Property Law

Delayed Challenge to Necessity

By Alan Ackerman

Pittsburgh Live

Municipal officials said they cannot comment on Auld's allegations because of the pending litigation. Jeff Hollowood, a lawyer representing the municipality, said council followed proper legal procedures and paid fair-market value for the property.

"The fact is, the time is long past for filing a challenge to this taking (by eminent domain)," said Hollowood, noting that the family had 30 days to submit a court challenge. The township obtained the property in December 2008.

"We turned down an offer for $5 million for that land," she said. "But it's not about the money. If it was, we would have taken it."

The Auld family's lawyer, Noah Fardo, said the lawsuit was not filed until fall 2009 because there was "a significant delay from the municipality in supplying documents that were requested for the case."

"Gladys started asking for paperwork in December 2008 but only got what we needed in November 2009, and it only came after filing an open records request," Fardo said.

Hollowood said the municipality used a professional appraiser to determine how much the property is worth. He said the Auld family did not provide a counter appraisal.
    
    Here we have an owner whose family has owned this property for over 100 years.  Emotionally, the taking subsumes the fact that emotions are at the center of the situation.  However, at the crux of the situation is that the owner could not obtain information under the Freedom of Information Act for an extended period of time after the suit was filed.
    The reality here is that challenge should have been taken in the appropriate method under Pennsylvania law as provided by  the state procedural delegation.  In some states, this requires a challenge within twenty-one (21) days of the filing of the condemnation complaint.  In others, it requires a challenge to legislation itself within a specific amount of time.  However, one thing is clear, and that is the procedural state law for eminent proceedings shall be followed.  Here, it was not.
    Hopefully, the owners obtain the proper appraisal which correctly evaluates the property difference between the value of the property without a taking and with a taking.   The only way that the taking can now be challenged is likely by a claim of fraud and intentional misrepresentation of fact.  The burden is so great and the opportunity to challenge under this process is close to zero.

Full post as published by National Eminent Domain Blog on April 13, 2010 (boomark / email).