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Eminent Domain & Real Estate Valuation

Fox Rothschild has one of the leading eminent domain and real estate litigation practices in the country. Join David Snyder, co-chair of the firm's Condemnation Practice Group, as he provides useful information and commentary regarding developments in the law, updates on projects and helpful tips regarding eminent domain and other real estate litigation related topics. This is an excellent resource for real estate professionals, property owners and condemnors who may be embarking upon a new project.
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Fair Housing Defense

Join Fox Rothschild attorneys Scott Badami and Christian Moffitt as they provide insight and information on and compliance with the Fair Housing Act and its state and local counterparts. The blog provides a forum for issues of interest to apartment owners and management companies as well as professional management employees.
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Recent Blog Posts

  • Retaliation and the Fair Housing Act I suspect I have mentioned this before, but it keeps coming up.  In addition to the seven protected classes (race, national origin, color, religion, sex, familial status, and disability) in the federal Fair Housing Act (FHA), there is another cause of action tucked away in a different section of the law that trips up housing providers from time to time: retaliation. Here is how it comes into play and hits my desk. Assume a resident submits more than a few service... More
  • Fair Housing and Elections All right. A couple of readers have asked me to comment on the November 2020 presidential election and what, if anything, the election may mean for fair housing. While I desperately try to avoid politics here at the Fair Housing Defense Blog, this is what I can report. Our federal Fair Housing Act (FHA) was passed back in 1968. It was amended in 1974 and then again in 1988. In short, the FHA has been enforced by multiple Democratic and... More
  • HUD Settles Two Fair Housing Act Cases: One for $8,000 and One for $6,000 In separate releases issued earlier today, the U.S. Department of Housing & Urban Development (HUD) announced that it settled two housing discrimination matters: one from California for $6,000 and one from Hawaii for $8,000. In the California case, the complainants claimed that housing providers declined to offer them a two bedroom unit because they have three children. In the Hawaii matter, the complainants asserted they were discriminated against on the basis of disability by failing to grant a reasonable accommodation... More
  • COVID-19: CDC Issues Pandemic Economic Hardship Eviction Hold Until The End of 2020 In a bit of a surprise, the Centers for Disease Control and Prevention (CDC) just issued a nationwide order halting many pandemic-related residential evictions through the end of 2020. At first glance, the order looks to cover more than 40 million residential renters if they meet certain defined income and other eligibility requirements. This new action follows President Trump’s Executive Order of August 8, 2020. That order directed the CDC (and other federal agencies) to review whether temporarily halting evictions... More
  • Some Additional COVID-19 Related Questions and Answers A couple of (well, four) quick pandemic-centric questions today:  As we have all seen over the past few months, some amenities at apartment communities (gyms, pools, fitness centers, community rooms, games rooms, and the like) were closed or remain closed because of government health restrictions. Can residents pay reduced rent because amenities bargained for are not available? While the language in each individual lease may differ, it is likely the answer is no. Many leases provide that even in the event... More
  • HUD Settles Three Housing Discrimination Cases From Arkansas for $51,000 Last week, the U.S. Department of Housing & Urban Development (HUD) announced it resolved three fair housing cases from Arkansas, settling allegations that the owners and property management company discriminated against a number of residents because of their national origin. Additionally, one of the now settled claims asserted that management retaliated against an employee who wanted to inform residents of their fair housing rights under the law. Factually, in two cases the complainants asserted they received an eviction notice (and management... More
  • Update on Residential Evictions in the COVID Era I get questions from time to time about the status of evictions during the pandemic. In short, there are no easy answers and guidance changes monthly (or even weekly). Displacing anyone from their home is unpleasant at any time. And the pandemic makes it even worse. While I certainly understand the reasoning around stopping evictions during the pandemic, I also want to speak up at the same time for a pause in multi-family property foreclosures as the rent paid by... More
  • Can Apartment Management Restrict Political Signs in Windows and on Doors? Read On. With the 2020 presidential election less than three months away, I had an interesting question hit my desk: can a property management company restrict residents from placing political signs on their exterior windows, doors, and/or balconies? With some exceptions (noted below), the answer looks to generally be yes. Now, of course residents have First Amendment rights and leasing offices are not trying to take those away – unless the resident has agreed to a provision in the lease (or community... More
  • HUD Charges Georgia Property Owner With Disability Discrimination For Failure to Approve a Reasonable Accommodation Request Related to the Rental Due Date Here is a fact pattern professional apartment management should work to avoid. An applicant signs a lease for an apartment home. Rent is due on the first of the month. As is typical in many residential leases, late fees are due if the rent is not paid after a few days. The resident is disabled and receives a disability check later in the month (but the check indeed comes each month). He asks the leasing office for a reasonable accommodation... More
  • Answering Fair Housing Defense Blog Reader Questions/Comments Catching up with some Fair Housing Defense reader email this week. With the caveat that this blog entry does not constitute legal advice, here we go: Am I part of the problem? Sure hope not. A reader indicated that because I defend those accused of housing discrimination (and specifically that I have previously written I will defend a case until I obtain a No Probable Cause Dismissal in certain circumstances), I am part of the problem because he has a legitimate... More
  • Third Cir.: State Law Governs Measure of Just Compensation Standard In Pipeline Case The Third Circuit recently held that state law is the standard for determining just compensation in Federal eminent domain cases. In Tennessee Gas Pipeline Co. LLC v. Permanent Easement, a pipeline company condemned property pursuant to a federal statute – the Natural Gas Act of 1938 (“NGA”) – and filed the case in federal court. The issue then became whether Pennsylvania eminent domain law governed the issue of the amount of just compensation in that case. PA law could require... More
  • La. Appraisers Board Can’t Challenge FTC Case Yet: 5th Circ. The 5th Circuit ruled that it was premature to review the Louisiana Real Estate Appraisers Board allegation that a Federal Trade Commission action cut into competition.  The FTC alleged in its 2017 complaint that the Board interfered with the free market and restrained price competition by limiting the ways appraisal management companies could calculate an appraiser’s pay.... More
  • Pimlico: Baltimore Using Eminent Domain To Take The Racetrack Attorneys for the Pimlico Race Course owners say the city of Baltimore is trying to gain control of the racetrack and the signature Preakness Stakes race through eminent domain.  The Stronach Group attorneys sent a letter saying the City filed a lawsuit that is a “transparent ploy to gain some sort of negotiating leverage over the owners of the Maryland Jockey Club and the Preakness Stakes.” Proposed legislation would make state funds available for The Stronach Group to revamp another site,... More
  • CT Committee Approves Eminent Domain Bill A Connecticut legislative committee approved a bill to restrict public taking of private land for economic development purposes. The bill would prohibit state and municipal redevelopment agencies from using eminent domain to take property to be used as part of a private development project. According to press accounts, there are a number of potential issues that may work against pas-sage of the bill. “I’m not certain that this will continue forward past today,” said Rep. Cristin McCarthy Vahey, D-Fairfield, co-chairwoman of... More
  • TX Legislator Files Eminent Domain Reform Legislation TX State Senator Lois W. Kolkhorst joined several statewide advocates for property rights to announce the filing of Senate Bill 421 which seeks to strengthen Texas property rights. If passed, Kolkhorst said the legislation would create a substantially more fair, equitable and transparent eminent domain process. “Since the days of Sam Houston and Stephen F. Austin, Texans have valued on our freedom to own private property,” said Kolkhorst. “To continue that proud tradition, I have filed SB 421 to see... More
  • SCOTUS REHEARS EMINENT DOMAIN CASE WITH KAVANAUGH ON BENCH The US Supreme Court reheard oral arguments on whether a property owner can have a federal court decide an inverse condemnation case without first exhausting state remedies. In Knick v. Twp. of Scott, the property owner alleged that the enactment of a law constituted an inverse condemnation. SCOTUS first heard argument on the case on October 3, 2018 before Justice Kavanaugh’ confirmation. After his confirmation, the Court ordered a second round of oral argument. The property owner, represented by the... More
  • Our Team Obtains $1.75M Eminent Domain Jury Verdict I recently had a trial regarding a partial taking of a trucks stop located outside of Harrisburg, PA. The Condemnor/Township claimed the damages were $0. We argued that the damages were $1.75M. After a four day trial, a Dauphin County jury awarded the full $1.75M. As a result, our client will also receive another $750,000 in other damages.  We are thrilled for our client.... More
  • Our Bucks County Verdict Is Now Final I tried a case in Bucks County, PA involving a condemnation by the Pennsylvania Turnpike Commission.  PennDOT claim the property was worth $850,000. We presented evidence that the property was worth $2,300,000.  The Jury returned a verdict of $2,300,000 – the full amount we alleged. Unfortunately, the Turnpike chose to appeal the verdict to the Commonwealth Court. The Court affirmed that verdict. The RDA filed a petition asking the PA Supreme Court to hear it’s appealed. The Court denied that petition. So,... More
  • APPLICANTS BEWARE OF TIMELINES ON ZONING DECISIONS In many cases, a Zoning Hearing Board will impose certain conditions on the grant of a variance or special exception. A condition of such approval could include a time limit as to when the applicant is required to obtain all necessary permits to construct the proposed improvements before the variance or special exception is deemed void. For example, a condition could read “The Applicant must apply for any necessary permits within one (1) year from the date of this decision... More
  • PA House Considers “Landowner Bill of Rights” Rep. Chris Quinn (R-Delaware) recently introduced a bill in the PA House that would require the Pennsylvania Office of Attorney General to create a brief document to clearly outline the rights and responsibilities property owners have during any land acquisition negotiations where eminent domain is being used.  House Bill 2609, titled Landowner Bill of Rights, is aimed at allowing property owners to better understand their rights during eminent domain negotiations.  Some condemning agencies, such as state departments of transportation (including... More
  • Our York Verdict Is Now Final I tried a case in York County, PA involving a condemnation of the former York County Prison by the City of York RDA. The RDA claimed it was worth about $65,000. We presented evidence that the property was worth $1,250,000. After less than ½ hour, the Jury returned a verdict of $1,250,000 – the full amount we alleged. Unfortunately, the RDA chose to appeal the verdict to the Commonwealth Court. The Court affirmed that verdict. The RDA filed a petition asking the... More
  • Special Exception The Commonwealth Court of Pennsylvania recently confirmed the standards by which an applicant can obtain a special exception to expand a nonconforming use on its property. In Mercy v. Zoning Hearing Board of Cross Roads, an applicant filed an application with the Zoning Hearing Board seeking a special exception to expand an existing nonconforming use to include the storage and temporary parking of RVs on its property.  The Commonwealth Court affirmed the grant of the special exception with the following findings: The... More
  • Informational Notice Personal Income Tax 2017-01 Are you a tenant who pays rent to a non-resident individual, estate or trust?  If so, beware!  Act 43 of 2017 created a withholding obligation for certain lessees of Pennsylvania real estate to non-residents and also expanded the requirements with respect to when a copy of Federal Form 1099-MISC is required to be filed with the Pennsylvania Department of Revenue.  Anyone leasing real estate in Pennsylvania, who makes a lease payment in the course of their trade or business to... More
  • House Bill 352 House Bill No. 352 passed the General Assembly and has now been signed by the Governor.  See attachment.  It provides that an individual can obtain title to a property by adverse possession in 10 years instead of the 21 years required by prior law.  The property must be less than one-half acre in size and contain a single-family home.  The claimant must also meet all of the underlining requirements of adverse possession under current Pennsylvania law and the new requirements... More
  • DEVELOPMENT OPPORTUNITY – CHELTENHAM TOWNSHIP The Cheltenham Township Community Development Corporation (CTCDC) is seeking proposals from qualified applicants for the acquisition and redevelopment of a 5 acre parcel of land, zoned commercial, and owned by the Township.  CTCDC’s objective is to achieve a redevelopment of the parcel in accordance with the newly passed Township zoning plan.  A successful submission will provide the optimal satisfaction of the following objectives: Generating long term tax revenues for the Township and School District. Minimizing the need for variances or other changes... More
  • Objectors Have a Heavy Burden When Opposing a Special Exception The Commonwealth Court of Pennsylvania recently confirmed the standards by which an applicant is entitled to special exception approval, which could help applicant’s in preparing their cases before a zoning board. In Monroe Land Investments v. Zoning Board of Adjustment and the City of Philadelphia, et al, 2018 WL 1462211, the Commonwealth Court affirmed the decision of the Philadelphia County Court of Common Pleas to reverse the City of Philadelphia Zoning Board of Adjustment’s decision to deny a request for a... More
  • IT’S THAT TIME AGAIN. WHAT TIME? TIME TO REVIEW YOUR PENNSYLVANIA REAL ESTATE ASSESSMENTS. Are the real property taxes assessed against your property out of proportion to the actual value of your property?  If so, what should you do? First, you need to determine if you have a basis to file an appeal to the county board of assessment for your property. To do so, you need an experienced real estate assessment attorney and a qualified appraiser. On commercial and industrial properties, as well as rental residential properties, two calculations often make the determination if you... More
  • ALERT- New Environmental Justice Regulations Coming Soon to New Jersey! David Restaino writes: On April 20, Governor Murphy signed Executive Order No. 23 (EO 23) committing state government to making intelligent environmental decisions in communities that are disproportionately affected by environmental degradation. EO 23 requires that the NJDEP take the lead in developing guidance that would require state departments and agencies to consider “Environmental Justice” in implementing their responsibilities. The first draft of the guidance will be due in six months, after which time there shall be another 90 days for the... More
  • New Project Information Form Required for Appeals to the City of Philadelphia Zoning Board of Adjustment The City of Philadelphia Zoning Board of Adjustment has imposed a new requirement for filing Appeals.  As of April 9, 2018, an applicant seeking a variance or special exception from the Zoning Board of Adjustment must submit a Project Information Form prior to filing an Application for Appeal.  The Project Information Form requires basic information regarding the proposed project, including but not limited to, the name and contact information of the applicant, a description of the proposed project, approximate length... More
  • Black Letter Law for the Grant of Special Exceptions in Pennsylvania In the case of Polaris v. Fayette County Zoning Hearing Board, the Commonwealth Court reversed a decision of the Court of Common Pleas and the underlying zoning hearing board to deny an application to use a property as a methadone clinic. In this case, Polaris argued that the ZHB erroneously denied its special exception application on the grounds that Polaris had not met its burden of proof and that the proposed clinic would adversely affect the health, safety and welfare... More
  • New Sea Level Rise Policies Will Have A Major Impact on California Coastal Development The California Coastal Commission adopted this week a new, major statewide policy document to help guide its decision-making when analyzing the impact of sea level rise on new permit applications and coastal land use plans. The nearly 300-page policy document analyzes current science, technical information and best practices in a single resource to help coastal regulators at the state and local level.  While the document is intended by the Commission to guide planning and development decisions, it is advisory and does not alter... More
  • State Agencies Can’t Say CEQA Mitigation is Infeasible If Earmarked Funds Are Unavailable, High Court Says When environmental review of a proposed development project by a state agency shows that it will have traffic impacts, a state agency is not allowed to nevertheless approve the project on the grounds that the funds needed to mitigate congestion have not been earmarked by the Legislature, the California Supreme Court has held. The court’s recent unanimous decision in City of San Diego v. Board of Trustees of the California State University is significant for two important reasons.  First, it is now... More
  • California Supreme Court lets stand challenge to tiered pricing model for water service California water utilities cannot impose tiered pricing to discourage excessive water use without showing the price increases are related to the increased cost of providing water service to the customer. On July 23, the California Supreme Court let stand a lower court ruling that invalidated San Juan Capistrano’s price tier structure for water rates.  In Capistrano Taxpayers Association, Inc. v. City of San Juan Capistrano, the California Court of Appeal held that Proposition 218 requires public water agencies to calculate the actual... More
  • US Supreme Court holds sign regulations can’t impose different restrictions based on informational content If a city or county’s laws impose different restrictions on signs based on their informational content, the laws are presumptively unconstitutional and may be justified only if the government proves they are narrowly tailored to serve compelling state interests, the US Supreme Court has held. In Reed v. Town of Gilbert, decided in the last blockbuster month at the US Supreme Court, the justices established a powerful tool for real estate owners, developers and brokers to challenge local sign ordinances. Cities and counties throughout the... More
  • California Cities Can Require Developers to Build and Sell Affordable Housing in Their Projects Local governments may enact laws that require all new residential development projects of 20 or more units to sell at least 15 percent of the for-sale units at a price that is affordable to low or moderate income households, the California Supeme Court has held. The case marks a defeat for the California Building Industry Association (“CBIA”), who sought to invalidate San Jose’s inclusionary housing ordinance on the basis that the law was an unconstitutional condition in the form of a... More
  • California Lawmakers Propose Property Tax Reform for Commercial and Industrial Properties California lawmakers recently introduced SCA 5, a new proposal of an old idea to create a “split-roll” property tax.  The proposed constitutional amendment would remove Proposition 13’s limits on property taxes for commercial and industrial properties. The measure would allow for yearly reassessment of those properties to ensure their property taxes reflect current market value, as opposed to only reassessing a property when it changes ownership.  Protections for residential and agricultural property assessments would remain in place. Voters approved Proposition 13... More
  • New Crowdfunding Tool for Real Estate Projects Emerges – But Tread Carefully Last week, the Securities and Exchange Commission (“SEC”) adopted final rules that will make it easier for real estate firms to pursue capital raises of up to $50 million in a 12 month period. The rules, commonly referred to as Regulation A+, permit eligible companies to conduct securities offerings without the onerous requirements of full securities registration.  What’s more, companies can solicit funds from individuals who are not accredited investors.  In other words, companies can promote their investment opportunity to any... More
  • Los Angeles County Moves Toward New “General Plan” Governing Development for Next 20 Years The Los Angeles County Board of Supervisors yesterday took the first important step toward adopting a new General Plan, the constitution for land use policy and development for the unincorporated areas of the county.  The County’s current general plan was adopted in 1980.  This update is intended to apply to all the County’s unincorporated areas through 2035. With little fanfare, the Board took action on the Final Environmental Impact Report for the General Plan update.  The Board also indicated its intent to approve the general plan, related zoning changes, a... More
  • Crowdfunding Your Real Estate Project — Current Opportunities and Future Prospects Real estate investors and developers are increasingly looking to raise money for their projects through “crowdfunding,” as legal and regulatory issues become better understood. In the real estate context, “crowdfunding” is the raising of funds for a project through the use of social media to obtain contributions from many individuals.  Technically, each one of these investments in a real estate project by individuals is considered the purchase of a “security” from the project sponsor under federal law and regulations.  In the U.S., a... More
  • California Supreme Court Will Hear Suit On SANDAG’s Transportation Plan The California Supreme Court will decide whether the environmental impact report for SANDAG’s regional transportation plan must include an analysis of the plan’s consistency with statewide greenhouse gas emission reduction goals established by executive order. The San Diego Association of Governments (“SANDAG”) brought the appeal in Cleveland National Forest Foundation v. San Diego Association of Governments. This is an important case to watch.  Greenhouse gas emissions analysis will become more complicated and expensive for local government agencies and project applicants if consistency with... More