Contributions

Inverting the Scope-of-the-Project Rule: Determining When Government Pre-Condemnation Announcements Should Change the Default Rule for Just Compensation

By Tim­o­thy Lyons1

Emi­nent domain, the means by which gov­ern­ment wields the pow­er to seize title to land with­out the con­sent of the landown­er, ranks among the most pow­er­ful instru­ments in government’s arse­nal. In a demo­c­ra­t­ic soci­ety where the scope of state pow­er is lim­it­ed, the peren­ni­al threat that emi­nent domain pos­es to prop­er­ty rights demands pro­ce­dur­al safe­guards suf­fi­cient to jus­ti­fy its exis­tence. Among the most impor­tant of these pro­tec­tions is the right to just com­pen­sa­tion for the tak­ing of one’s prop­er­ty. Schol­ars have advanced numer­ous ways in which this pro­tec­tion is fun­da­men­tal in cab­in­ing the exer­cise of emi­nent domain and alle­vi­at­ing its poten­tial­ly dev­as­tat­ing effects. By forc­ing the gov­ern­ment to inter­nal­ize the costs imposed upon prop­er­ty own­ers, the just com­pen­sa­tion require­ment ensures that the gov­ern­ment only effec­tu­ates tak­ings whose ben­e­fits to the pub­lic at large exceed those costs.2 The require­ment also pre­vents prop­er­ty own­ers who lack an effec­tive voice in the polit­i­cal process from bear­ing an unfair pro­por­tion of the total costs of gov­ern­ment tak­ings, even those that ben­e­fit soci­ety as a whole,3 and it ensures that own­ers whose prop­er­ty is tak­en receive rec­om­pense for the “demor­al­iza­tion” they may expe­ri­ence as a result.4

The require­ment to pay just com­pen­sa­tion is imposed on the fed­er­al gov­ern­ment by the Fifth Amend­ment, which pro­vides that “[n]o per­son shall … be deprived of life, lib­er­ty, or prop­er­ty, with­out due process of law, nor shall pri­vate prop­er­ty be tak­en for pub­lic use, with­out just com­pen­sa­tion.”5 For a prop­er­ty own­er to receive just com­pen­sa­tion, they must “be put in the same posi­tion mon­e­tar­i­ly as [they] would have occu­pied if [their] prop­er­ty had not been tak­en.”6 The U.S. Supreme Court has held that the require­ment “means in most cas­es the fair mar­ket val­ue of the prop­er­ty on the date it is appro­pri­at­ed,” but has cau­tioned that “oth­er mea­sures” should be employed “when mar­ket val­ue is too dif­fi­cult to find, or when its appli­ca­tion would result in man­i­fest injus­tice to own­er or pub­lic.”7 Ulti­mate­ly, the Court has advised that “[t]he con­sti­tu­tion­al require­ment of just com­pen­sa­tion derives as much con­tent from the basic equi­table prin­ci­ples of fair­ness … as it does from tech­ni­cal con­cepts of prop­er­ty law.”8

This leads to the ques­tion of when exact­ly the “basic equi­table prin­ci­ples of fair­ness” ren­der the bright-line rule of “fair mar­ket val­ue at the time of the tak­ing” inap­pro­pri­ate. One such instance may be when the government’s acqui­si­tion of title through a tak­ing is pre­ced­ed by gov­ern­ment action that low­ers the property’s val­ue. This can hap­pen, inter alia, when the gov­ern­ment announces its plans to con­demn a spe­cif­ic plot of land before actu­al­ly tak­ing it. The announce­ment, by set­ting a finite hori­zon for any con­ceiv­able pri­vate use of the prop­er­ty, lim­its poten­tial enjoy­ment of and invest­ment in that prop­er­ty and reduces the val­ue it can fetch on the open mar­ket.9 Even when fair mar­ket val­ue at the time of the tak­ing is esti­mat­ed by eval­u­at­ing the mar­ket val­ue of sim­i­lar­ly sit­u­at­ed prop­er­ties, rather than the mar­ket val­ue of the con­demned prop­er­ty itself, pre-con­dem­na­tion announce­ments can sub­stan­tial­ly affect the con­demned prop­er­ty to the point of actu­al­ly chang­ing which oth­er prop­er­ties are “sim­i­lar­ly sit­u­at­ed” to that prop­er­ty, to the landowner’s detri­ment.10

Through var­i­ous just com­pen­sa­tion cas­es, the Court has estab­lished the “scope-of-the-project rule,” which states in essence that when the gov­ern­ment makes a pre-con­dem­na­tion announce­ment as part of a gov­ern­ment project, the gains from any increas­es in the property’s val­ue attrib­ut­able to the announce­ment should gen­er­al­ly run to the gov­ern­ment, not to the prop­er­ty own­er.11 This Con­tri­bu­tion will argue that the log­i­cal and equi­table exten­sion of this rule is its con­verse: when a pre-con­dem­na­tion announce­ment depre­ci­ates the val­ue of the prop­er­ty to be con­demned, the val­u­a­tion of the prop­er­ty for the pur­pos­es of just com­pen­sa­tion should gen­er­al­ly be the property’s fair mar­ket val­ue at the time of the announcement.

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The scope-of-the-project rule that now gov­erns just com­pen­sa­tion in the con­text of gov­ern­ment projects comes from Unit­ed States v. Miller,12 a case involv­ing sev­er­al landown­ers in an emi­nent domain action seek­ing as just com­pen­sa­tion the fair mar­ket val­ue of their prop­er­ties on the date the gov­ern­ment filed its com­plaint in con­dem­na­tion.13 The gov­ern­ment was plan­ning to reroute a rail­road, and one of the poten­tial replace­ment routes ran through the landown­ers’ prop­er­ties; the landown­ers sought to gain com­pen­sa­tion for the appre­ci­a­tion in land val­ue that had tak­en place through­out the area fol­low­ing the government’s announce­ment. The Court ruled for the gov­ern­ment, stat­ing that in cal­cu­lat­ing just com­pen­sa­tion, a court should “dis­re­gard incre­ment of val­ue due to the ini­ti­a­tion of the project and aris­ing after” the moment that the gov­ern­ment “was def­i­nite­ly com­mit­ted to the project.”14 In this case, since the project’s “final and def­i­nite autho­riza­tion” occurred in August 1937, the landown­ers “were enti­tled to no increase in val­ue aris­ing after August 1937 because of the like­li­hood of the tak­ing of their prop­er­ty.”15

Miller estab­lished a broad set of guide­lines for deter­min­ing when the “scope-of-the-project rule” applies to a unit of land that the gov­ern­ment takes as a part of a pub­lic “project.” The Court explained that the cen­tral ques­tion is whether the land was “prob­a­bly with­in the scope of the project from the time the Gov­ern­ment was com­mit­ted to it.”16 If the lands were orig­i­nal­ly adja­cent to the project but only brought with­in its scope by an expan­sion or mod­i­fi­ca­tion of the project’s scope, then the own­ers are enti­tled to be com­pen­sat­ed for the increase in their lands’ val­ue. In con­trast, if the lands have been with­in the project’s scope since its incep­tion, then the gov­ern­ment “ought not to pay any increase in val­ue aris­ing from the known fact that the lands prob­a­bly would be con­demned.”17 Bas­ing its rule in both pub­lic pol­i­cy and fun­da­men­tal fair­ness, the Court rea­soned that “the own­ers ought not to gain by spec­u­lat­ing on prob­a­ble increase in val­ue due to the Gov­ern­men­t’s activ­i­ties.”18

In a lat­er case, Unit­ed States v. Vir­ginia Elec­tric & Pow­er Co.,19 the Court made clear that its hold­ing in Miller also applied to sit­u­a­tions where pri­or gov­ern­ment action had decreased, rather than increased, the val­ue of the prop­er­ty tak­en. The Court stat­ed that, in decid­ing the issue of just com­pen­sa­tion, a court “must exclude any depre­ci­a­tion in val­ue caused by the prospec­tive tak­ing once the Gov­ern­ment ‘was com­mit­ted’ to the project,” and empha­sized that “it would be man­i­fest­ly unjust to per­mit a pub­lic author­i­ty to depre­ci­ate prop­er­ty val­ues by a threat of the con­struc­tion of a gov­ern­ment project and then to take advan­tage of this depres­sion in the price which it must pay for the prop­er­ty when even­tu­al­ly con­demned.”20

The log­i­cal exten­sion of Miller and Vir­ginia Elec­tric & Pow­er Co. is that depre­ci­a­tion caused by a well-pub­li­cized gov­ern­men­tal pre-con­dem­na­tion announce­ment can trig­ger the scope-of-the-project rule. Gov­ern­ment action inci­dent to and pri­or to a con­dem­na­tion, includ­ing a pre-con­dem­na­tion announce­ment, has the pos­si­bil­i­ty to either increase or decrease the fair mar­ket val­ue of the prop­er­ty to be con­demned. Since under the cur­rent scope-of-the-project rule, any increase in the val­ue of prop­er­ty with­in and attrib­ut­able to the project can­not be includ­ed in the deter­mi­na­tion of just com­pen­sa­tion for the prop­er­ty, it would be inequitable for own­ers to also have to bear the bur­den of any decrease in val­ue like­wise attrib­ut­able to gov­ern­ment action.

Both fed­er­al courts and state courts have applied the Supreme Court’s broad guid­ance from Miller and Vir­ginia Elec­tric & Pow­er Co. by hold­ing that well-pub­li­cized pre-con­dem­na­tion announce­ments by the gov­ern­ment are capa­ble of trig­ger­ing the scope-of-the-project rule,21 and sev­er­al courts have found spe­cif­ic announce­ments to have actu­al­ly done so. For exam­ple, the Flori­da Supreme Court held that the state’s announce­ment of its plan to con­struct a high­way, com­bined with the state’s dis­clo­sure of spe­cif­ic lands that would need to be tak­en for the project, trig­gered the scope-of-the-project rule, even though the state wait­ed until the fol­low­ing year to file suits for con­dem­na­tion of those lands.22 Bas­ing its deci­sion off of the Flori­da Con­sti­tu­tion, the Court held that, for the pur­pos­es of eval­u­at­ing just com­pen­sa­tion, the effect of the “threat of con­dem­na­tion” should be exclud­ed, and the land should be val­ued “as it would be if it had been put and were being put to its high­est and best use.”23 Numer­ous oth­er state supreme courts have inter­pret­ed their respec­tive states’ require­ments for just com­pen­sa­tion anal­o­gous­ly, often draw­ing upon Supreme Court prece­dent to inform their analy­sis.24

Fed­er­al dis­trict courts have fol­lowed a sim­i­lar route, some using the lan­guage of “con­dem­na­tion blight” or “project influ­ence” to refer to the depre­cia­tive effect of gov­ern­ment action on prop­er­ty val­ue in such con­texts.25 One dis­trict court, apply­ing the doc­trine of “con­dem­na­tion blight,” rec­og­nized that “‘fair’ mar­ket val­ue can­not be assessed as of the date of the tak­ing if project plan­ning and pub­lic­i­ty arti­fi­cial­ly depressed demand pri­or to the trans­fer of title,” and not­ed that the gov­ern­ment in that case had even admit­ted that its “pre-con­dem­na­tion announce­ment” was “an inte­gral and legal­ly nec­es­sary part of its emi­nent domain pro­ce­dure.”26 Anoth­er dis­trict court syn­the­sized the var­i­ous scope-of-the-project rules across sev­er­al fed­er­al cir­cuits to hold that in order for a “project,” for the pur­pose of the rule, to be estab­lished, “(1) there must be a pub­lic pur­pose requir­ing the acqui­si­tion of land; (2) the par­tic­u­lar lands required for the pub­lic pur­pose must be iden­ti­fied; and (3) such immi­nent acqui­si­tion must be evi­dent to the pub­lic.”27

The prin­ci­ple moti­vat­ing these deci­sions is clear: when the gov­ern­ment active­ly dimin­ish­es the val­ue of land inci­dent to a tak­ing and then takes it at a low­er price, the landown­er should be enti­tled to fair com­pen­sa­tion for their loss. Obvi­ous­ly, just com­pen­sa­tion for the tak­ing of a par­cel of land is not defined by the actu­al mar­ket val­ue of that land at the time of the tak­ing; if so, the val­ue would always be zero, since any pri­vate buy­er would have to sur­ren­der the prop­er­ty to the gov­ern­ment at the moment of acqui­si­tion. Yet even a val­u­a­tion method that uses sim­i­lar­ly sit­u­at­ed prop­er­ties as a proxy for the property’s fair mar­ket val­ue may fail to account for the full effects of the government’s pre-con­dem­na­tion actions. The fair mar­ket val­ue of any par­cel of land is rarely sta­t­ic, and the “high­est and best use” of that par­cel depends on a mul­ti­tude of fac­tors, many with­in the government’s con­trol in the con­text of the sur­round­ing project.28 Thus, if com­pen­sa­tion for tak­ings is unchanged by a pre-con­dem­na­tion announce­ment, landown­ers who face the prob­a­ble con­dem­na­tion of their prop­er­ty at some point in the future must choose between aban­don­ing their prop­er­ty, there­by allow­ing its mar­ket val­ue to decrease, or con­tin­u­ing to main­tain or improve the prop­er­ty for con­tin­ued pro­duc­tive use, there­by expend­ing sig­nif­i­cant cap­i­tal or labor to be halt­ed at a poten­tial­ly uncer­tain date.29 With regard to com­mer­cial or indus­tri­al prop­er­ty, the cloud of future con­dem­na­tion hang­ing over the prop­er­ty can eas­i­ly lead to a dearth of rev­enue and fund­ing sources, as investors, employ­ees, and oth­er stake­hold­ers decide to trans­fer their busi­ness else­where giv­en both short-term uncer­tain­ty and the long-term cer­tain­ty that the prop­er­ty will even­tu­al­ly be unavail­able for pri­vate use alto­geth­er.30

While the prob­lem could the­o­ret­i­cal­ly be reme­died through a com­plex appor­tion­ment process in which changes in land val­ue attrib­ut­able to gov­ern­ment pre-con­dem­na­tion announce­ments would be sep­a­rat­ed from those not so attrib­ut­able, a solu­tion that would pro­vide for greater clar­i­ty for all par­ties involved and involve few­er admin­is­tra­tive costs would be sim­ply to deter­mine the property’s fair mar­ket val­ue on the date of the announce­ment. Includ­ing evi­dence from after the begin­ning of the project would mean devi­at­ing from the tem­po­ral foun­da­tion of the deter­mi­na­tion of just com­pen­sa­tion and break­ing from the scope-of-the-project rule as nor­mal­ly applied. As dis­cussed, just com­pen­sa­tion “means in most cas­es fair mar­ket val­ue of the prop­er­ty on the date it is appro­pri­at­ed.”31 Part of the ratio­nale for set­ting a spe­cif­ic date is the “need for a clear, eas­i­ly admin­is­tra­ble rule gov­ern­ing the mea­sure of ‘just com­pen­sa­tion.’”32 Like­wise, the scope-of-the-project rule itself envi­sions a date on which the project begins, as the rea­son­ing of Miller and its prog­e­ny illus­trates.33 Requir­ing either a pan­el of judges or a fact-find­ing com­mis­sion34 to tease out which post-announce­ment events were inde­pen­dent of gov­ern­ment action and dis­cern to what extent they affect­ed the property’s val­ue would be an aber­ra­tion from the nor­mal course of deter­min­ing a spe­cif­ic date on which the prop­er­ty should be val­ued for just com­pen­sa­tion. More­over, a factfind­ing com­mis­sion, gen­er­al­ly assigned only to deter­mine the mar­ket val­ue of a prop­er­ty on a spe­cif­ic date based on sim­i­lar­ly sit­u­at­ed prop­er­ties,35 can­not be expect­ed to have either the resources or the tech­ni­cal skills to sen­si­bly appor­tion cau­sa­tion across these fac­tors and attribute to each fac­tor a mon­e­tary val­ue. The osten­si­bly sim­ple task of select­ing a date at which to fix the con­demned property’s fair mar­ket val­ue presents suf­fi­cient con­cep­tu­al dif­fi­cul­ty to cau­tion against adding addi­tion­al com­plex­i­ties to the val­u­a­tion process.36

How­ev­er, a rule requir­ing the gov­ern­ment to com­pen­sate landown­ers for decreas­es in prop­er­ty val­ue caused by gov­ern­men­tal pre-con­dem­na­tion announce­ments need not be absolute; like any oth­er equi­table rule, it could allow for excep­tions in cas­es where its ratio­nales lose force.37 If an inci­dent occurred fol­low­ing the government’s pre-con­dem­na­tion announce­ment that affect­ed the property’s val­ue and that was clear­ly dis­tin­guish­able and exoge­nous from the government’s actions, an assess­ment of the effects of that event on the property’s fair mar­ket val­ue might be war­rant­ed, since the event would clear­ly not be part of the “project” as defined by the scope-of-the-project rule.38 It would be unfair to the gov­ern­ment (and ulti­mate­ly, the tax­pay­ing pub­lic) to require prop­er­ty own­ers to be com­pen­sat­ed for pre-exist­ing val­ue that would have been sim­i­lar­ly extin­guished absent any gov­ern­ment action.39

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Although “fair mar­ket val­ue of the prop­er­ty at the time of the tak­ing” is the “basic mea­sure of com­pen­sa­tion,” the Court has “hedged” that mea­sure “with cer­tain refine­ments … in the inter­est of effec­tu­at­ing the con­sti­tu­tion­al guar­an­tee” that com­pen­sa­tion will be “just.”40 One such refine­ment is the “scope-of-the-project” rule: when prop­er­ty is con­demned pur­suant to a “pub­lic project,” val­u­a­tion of that prop­er­ty for the pur­pos­es of com­pen­sa­tion must exclude the effects of the project itself, since “to per­mit com­pen­sa­tion to be either reduced or increased because of an alter­ation in mar­ket val­ue attrib­ut­able to the project itself would not lead to the ‘just com­pen­sa­tion’ that the Con­sti­tu­tion requires.”41 As the Court has not­ed, the rule exists because “the ‘mar­ket val­ue’ of prop­er­ty con­demned can be affect­ed, adverse­ly or favor­ably, by the immi­nence of the very pub­lic project that makes the con­dem­na­tion nec­es­sary.”42 Thus, the scope-of-the-project rule, depend­ing on the con­text, may work to the advan­tage of either the prop­er­ty own­er or the gov­ern­ment. “The pub­lic may not by any means con­fis­cate the ben­e­fits, or be required to bear the bur­den, of the owner’s bar­gain”; the own­er “must be made whole but is not enti­tled to more.”43

The scope-of-the-project rule may be valu­able in pro­tect­ing the val­ue of pub­lic projects from cap­ture by spec­u­la­tors, but it need not be lim­it­ed to this role. Extend­ing the rule to pro­tect landown­ers from prop­er­ty-val­ue depre­ci­a­tion result­ing from gov­ern­ment announce­ments of future tak­ings would sim­ply be an endorse­ment of an equi­table prin­ci­ple that low­er courts have already rec­og­nized as fol­low­ing log­i­cal­ly from the Supreme Court’s con­tem­po­rary tak­ings jurispru­dence. To do oth­er­wise, by let­ting gov­ern­ment active­ly depress the val­ue of pri­vate land and then claim it at the low­er price, would be to allow gov­ern­ment to “con­fis­cate the ben­e­fits” of a landowner’s invest­ment in their prop­er­ty and exploit its own actions at their expense.

1. Tim­o­thy Lyons is a J.D. Can­di­date (2021) at New York Uni­ver­si­ty School of Law. This piece is a com­men­tary on the 2020 prob­lem at the Evans Moot Court Com­pe­ti­tion in Madi­son, Wis­con­sin, host­ed by the Uni­ver­si­ty of Wis­con­sin School of Law. The issue in the prob­lem dealt with the ques­tion of whether, for the pur­pos­es of just com­pen­sa­tion, con­demned prop­er­ty should be val­ued before the date of a well-pub­li­cized gov­ern­men­tal pre-con­dem­na­tion announce­ment pur­suant to a gov­ern­ment project. The views expressed in this arti­cle do not nec­es­sar­i­ly rep­re­sent the views of the author on this point of law. Rather, this arti­cle is a dis­til­la­tion of one side of the argu­ments made by the team at the Evans Moot Court Competition.

2. See, e.g., Jack L. Knetsch & Thomas E. Borcherd­ing, Expro­pri­a­tion of Pri­vate Prop­er­ty and the Basis for Com­pen­sa­tion, 29 U. Toron­to L.J. 237, 242–44 (1979).

3. See, e.g., Saul Lev­more, Tak­ings, Torts, and Spe­cial Inter­ests, 77 Va. L. Rev. 1333, 1344–45 (1991); Andrea L. Peter­son, The Tak­ings Clause: In Search of Under­ly­ing Prin­ci­ples Part I – A Cri­tique of Cur­rent Tak­ings Clause Doc­trine, 77 Cal. L. Rev. 1299, 1357–58 (1989).

4. See Frank I. Michel­man, Prop­er­ty, Util­i­ty, and Fair­ness: Com­ments on the Eth­i­cal Foun­da­tions of “Just Com­pen­sa­tion” Law, 80 Harv. L. Rev. 1165, 1214–16 (1967).

5. U.S. Con­st. amend. V. The Four­teenth Amend­ment applies this require­ment to state gov­ern­ments. U.S. Con­st. amend. XIV (“No State shall make or enforce any law which shall abridge the priv­i­leges or immu­ni­ties of cit­i­zens of the Unit­ed States; nor shall any State deprive any per­son of life, lib­er­ty, or prop­er­ty, with­out due process of law .…”).

6. Unit­ed States v. Reynolds, 397 U.S. 14, 16 (1970) (inter­pret­ing what con­sti­tutes “just com­pen­sa­tion” under the Fifth Amendment).

7. Kir­by For­est Indus. v. Unit­ed States, 467 U.S. 1, 10 n.14 (1984) (quot­ing Unit­ed States v. Com­modi­ties Trad­ing Corp., 339 U.S. 121, 123 (1950)).

8. Unit­ed States v. Fuller, 409 U.S. 488, 490 (1973) (cit­ing Unit­ed States v. Com­modi­ties Trad­ing Corp., 339 U.S. 121, 124 (1950)).

9. See gen­er­al­ly 8A Nichols on Emi­nent Domain § G18.01 (Matthew Ben­der, 3d ed. 2020) (pro­vid­ing an overview on the top­ic of con­dem­na­tion blight).

10. See Gideon Kan­ner, Con­dem­na­tion Blight: Just How Just is Just Com­pen­sa­tion?, 48 Notre Dame L. Rev. 765, 775 (1973) (crit­i­ciz­ing com­par­a­tive sales method because of courts’ ten­den­cy to “dogged­ly insist that the par­ties pro­duce ‘com­pa­ra­bles’ exact­ly like the prop­er­ty being tak­en, with scant regard for the real­i­ties of the mar­ket, which may make it impos­si­ble or, where pos­si­ble, not very reliable”).

11. See, e.g., Shoe­mak­er v. Unit­ed States, 147 U.S. 282, 304–05 (1893); Unit­ed States v. Miller, 317 U.S. 369, 376–77 (1943).

12. See Miller, 317 U.S. at 372. Pri­or cas­es had hint­ed at such a rule. See, e.g., Shoe­mak­er, 147 U.S. at 304–05; Kerr v. South Park Comm’rs, 117 U.S. 379, 387 (1886).

13. See Miller, 317 U.S. at 372.

14. Id. at 372–73.

15. Id. at 377.

16. Id. (empha­sis added).

17. Id.

18. Id.

19. 365 U.S. 624 (1961).

20. Id. at 636 (inter­nal quo­ta­tions omit­ted) (empha­sis added).

21. Some courts have focused espe­cial­ly on the tem­po­ral aspect of the scope-of-the-project analy­sis. In Unit­ed States v. 320.0 Acres of Land, 605 F.2d 762 (5th Cir. 1979), for instance, the Fifth Cir­cuit held that when a court con­sid­ers val­u­a­tion for just com­pen­sa­tion, “the appro­pri­ate date is large­ly a func­tion of rea­son­able expec­ta­tions,” name­ly “the date as of which the landown­ers or prospec­tive pur­chasers no longer could rea­son­ably antic­i­pate being able to devote these prop­er­ties to their high­est and best use in the con­text of the sur­round­ing gov­ern­men­tal project, with­out seri­ous appre­hen­sion that the prop­er­ties would soon be con­demned.” Id. at 807. Oth­er courts have extend­ed this rule to apply specif­i­cal­ly to gov­ern­men­tal announce­ments that iden­ti­fy a spe­cif­ic prop­er­ty as a tar­get for con­dem­na­tion. See, e.g., Baylin v. State Roads Comm’n, 475 A.2d 1155, 1161 (Md. 1984) (cit­ing 320.0 Acres of Land and remark­ing that “in some instances the com­mit­ment date may be the date the gov­ern­ment announced the project”).

22. State Road Dep’t v. Chicone, 158 So. 2d 753, 758 (Fla. 1963).

23. Id. See also Dade Cty. v. Still, 377 So. 2d 689, 690 (Fla. 1979) (hold­ing that con­demn­ing author­i­ty can­not ben­e­fit from depres­sion in prop­er­ty val­ue “caused by a pri­or announce­ment that it will be tak­en for a pub­lic project,” and “[c]ompensation under those cir­cum­stances must be based on the val­ue that the prop­er­ty would have had at the time of the tak­ing had it not been sub­ject­ed to the depre­ci­at­ing threat of condemnation”).

24. See, e.g., Lip­in­s­ki v. Lynn Redev. Auth., 246 N.E.2d 429, 432 (Mass. 1969) (hold­ing landown­er enti­tled to dam­ages “equal to the property’s val­ue, unaf­fect­ed by any knowl­edge of an impend­ing tak­ing”); Mich. DOT v. Hag­ger­ty Cor­ri­dor Part­ners Ltd. P’ship, 700 N.W.2d 380, 384–85 (Mich. 2005) (affirm­ing low­er court’s judg­ment that con­demned property’s val­ue “should have been deter­mined with­out regard to any enhance­ment or reduc­tion of the val­ue attrib­ut­able to con­dem­na­tion or the threat of con­dem­na­tion”); Twp. of. W. Wind­sor v. Nieren­berg, 695 A.2d 1344, 1345–46 (1997) (set­ting val­u­a­tion date when munic­i­pal­i­ty wrote let­ter to poten­tial con­dem­nee, stat­ing that munic­i­pal­i­ty might acquire prop­er­ty owner’s land for use as com­mu­ni­ty park); see also Nieren­berg, 695 A.2d at 1354 (cit­ing Vir­ginia Elec­tric & Pow­er with approval).

25. See, e.g., Unit­ed States v. 9.345 Acres of Land, No. 11–00803-JWD-EWD, 2018 U.S. Dist. LEXIS 68664, at *13–14, *27 (M.D. La. Apr. 24, 2018).

26. Unit­ed States v. 10.082 Acres, No. CV05-00363-PHX-NVW, 2007 U.S. Dist. LEXIS 22604, at *33–34 (D. Ariz. Mar. 27, 2007).

27. See Unit­ed States v. 1.604 Acres of Land, 844 F. Supp. 2d 668, 674 (E.D. Va. 2011) (grant­i­ng motion to exclude project and gov­ern­ment influ­ence evi­dence due to insuf­fi­cient show­ing that let­ter of inter­est from gov­ern­ment actu­al­ly affect­ed property’s val­ue). See also Unit­ed States v. 2,353.28 Acres of Land, 414 F.2d 965, 971 (5th Cir. 1969) (hold­ing that low­er court should have allowed evi­dence of change in mar­ket val­ue pre­ced­ing administrator’s tes­ti­mo­ny before Sen­ate, which was “ear­li­est dis­clo­sure by a project offi­cial that the [landowner’s] land prob­a­bly would be tak­en”); Unit­ed States v. 8,968.06 Acres of Land, More or Less, in Cham­bers & Lib­er­ty Ctys., Tex., 326 F. Supp. 546, 550 (S.D. Tex. 1971) (grant­i­ng motion in lim­ine to exclude impact of prospec­tive tak­ing when assess­ing like­li­hood of issuance of per­mits that would increase land value).

28. See Unit­ed States v. Fuller, 409 U.S. 488, 490 (1973) (not­ing that “gen­er­al­ly the high­est and best use of a par­cel may be found to be a use in con­junc­tion with oth­er parcels”).

29. In an opin­ion aris­ing from a con­dem­na­tion action, the Ari­zona Court of Appeals cit­ed sev­er­al ways in which a pre-con­dem­na­tion announce­ment could reduce prop­er­ty val­ues by decreas­ing the use and enjoy­ment of that property:

A pub­lic announce­ment of a planned project may result in ten­ants mov­ing out, see, e.g., Fos­ter v. City of Detroit, 254 F. Supp. 655 (E.D. Mich. 1966), land may become unsal­able, see, e.g., Eck­hoff v. For­est Pre­serve Dis­trict, 377 Ill. 208, 36 N.E.2d 245 (1941), main­te­nance of land and build­ings may cease … ordi­nances pre­vent­ing new con­struc­tion may be passed, see, e.g., Hunter v. Adams, 180 Cal. App. 2d 511, 4 Cal. Rptr. 776 (1960), and police pro­tec­tion may cease, there­by encour­ag­ing van­dal­ism, see, e.g., In re Elm­wood Park Project Sec­tion 1, Group B, 376 Mich. 311, 136 N.W.2d 896 (1965). Fur­ther­more, when prop­er­ty is con­demned in a piece­meal fash­ion, the con­demn­ing author­i­ty itself may help to pre­ma­ture­ly blight the area and an own­er whose lot is one of the last acquired is forced to absorb the declin­ing mar­ket val­ue which usu­al­ly accom­pa­nies piece­meal con­dem­na­tion. See City of Cleve­land v. Car­cione, 118 Ohio App. 525, 190 N.E.2d 52, 5 A.L.R. 3d 891 (1963).

Uvodich v. Ariz. Bd. of Regents, 453 P.2d 229, 234 (Ariz. Ct. App. 1969) (cleaned up).

30. Cf. Almo­ta Farm­ers Ele­va­tor & Ware­house Co. v. Unit­ed States, 409 U.S. 470, 477–78 (1973) (hold­ing that improve­ments were com­pens­able up to the val­ue of their use­ful life); Lucas v. S.C. Coastal Coun­cil, 505 U.S. 1003, 1015–16 (1992) (con­sid­er­ing diminu­tion of eco­nom­ic val­ue in reg­u­la­to­ry tak­ings analy­sis and hold­ing that loss of all pro­duc­tive use of land con­sti­tutes per se taking).

31. See Kir­by For­est Indus. v. Unit­ed States, 467 U.S. 1, 10 n.15 (1984).

32. Id. at 10.

33. See Unit­ed States v. Miller, 317 U.S. 369, 377 (1943) (rea­son­ing that because project, “from the date of its final and def­i­nite autho­riza­tion in August, 1937, included…one prob­a­ble route…marked out over the respon­dents’ lands,” it was “prop­er to tell the jury that the respon­dents were enti­tled to no increase in val­ue aris­ing after August, 1937, because of the like­li­hood of the tak­ing of their prop­er­ty”); see also Unit­ed States v. Reynolds, 397 U.S. 14, 21 (1970) (hold­ing that, in deter­min­ing project’s scope, “[i]t need only be shown that, dur­ing the course of the plan­ning or orig­i­nal con­struc­tion, it became evi­dent that land so sit­u­at­ed would prob­a­bly be need­ed for the pub­lic use”).

34. See Fed. R. Civ. P. 71.1(h)(2)(A) (per­mit­ting judge in con­dem­na­tion action to “appoint a three-per­son com­mis­sion to deter­mine com­pen­sa­tion because of the char­ac­ter, loca­tion, or quan­ti­ty of the prop­er­ty to be con­demned or for oth­er just reasons”).

35. See Reynolds, 397 U.S. at 20 (describ­ing role of fact-find­er in just com­pen­sa­tion inquiry).

36. See, e.g., Christo­pher Serkin, The Mean­ing of Val­ue: Assess­ing Just Com­pen­sa­tion for Reg­u­la­to­ry Tak­ings, 99 Nw. U. L. Rev. 677, 696–99 (2005) (iden­ti­fy­ing prob­lems that arise when select­ing a val­u­a­tion date).

37. Cf. id. at 21 (“As with any test that deals in prob­a­bil­i­ties, [the scope-of-the-project rule’s] appli­ca­tion to any par­tic­u­lar set of facts requires dis­crim­i­nat­ing judgment.”).

38. Per­haps the most obvi­ous and extreme exam­ple of this sce­nario would be a fire that destroyed the property’s struc­tures and enhance­ments. Courts have acknowl­edged the exis­tence of “con­dem­na­tion blight” aris­ing from less dras­tic instances, how­ev­er. See, e.g., Fos­ter v. City of Detroit, 254 F. Supp. 655, 661–62 (E.D. Mich. 1966) (find­ing city’s pre-con­dem­na­tion announce­ment part­ly respon­si­ble for property’s deval­u­a­tion while acknowl­edg­ing that nation­al trend of aban­don­ment of inner cities also contributed).

39. As for the bur­den of prov­ing the exo­gene­ity of the event and the mag­ni­tude of its effect on the property’s val­ue, the asym­me­try of the infor­ma­tion between the own­er and the gov­ern­ment sug­gests that the lat­ter is gen­er­al­ly bet­ter equipped to make the prop­er show­ing and thus should be required to do so. The Fifth Cir­cuit has held that once the scope-of-the-project rule has been trig­gered, “it may fair­ly be pre­sumed that any depre­ci­a­tion in val­ue is attrib­ut­able to the threat of con­dem­na­tion, and that any increase in val­ue is attrib­ut­able to the Government’s spe­cial demand for the prop­er­ty and its actions as con­dem­nor.” 320.0 Acres of Land, 605 F.2d at 807. The rule is trig­gered once “the prospect of immi­nent con­dem­na­tion becomes suf­fi­cient­ly def­i­nite that it would be a major fac­tor in the deci­sion of any rea­son­able per­son to buy or devel­op the prop­er­ty.” Id.

40. Reynolds, 397 U.S. at 16.

41. Id.

42. Id.

43. Olson v. Unit­ed States, 292 U.S. 246, 255 (1934) (empha­sis added).