Eminent Domain
Partial Takings
The Process Begins
Presented by
Janet Bush Handy, Assistant Attorney General
Maryland State Highway Administration
Legal Authority
Constitutional
Statutory
Actual
Authorization
Legal Authority
State Highway Administration

Constitutional---Md. Const., Article III,
§ 40B
 Statutory---Md. TRANSPORTATION
Code Ann. § 8-302
 Actual authorization---Resolution of the
State Roads Commission
Real Property Article 12-104
Damages To Be Awarded
(b) Where part of tract taken. -- The damages to be
awarded where land, or any part of it, is taken is the
fair market value of the part taken, but not less than the
actual value of the part taken plus any severance or
resulting damages to the remaining land by reason of
the taking and of future use by the plaintiff of the part
taken. The severance or resulting damages shall be
diminished to the extent of the value of the special
(particular) benefits to the remainder arising from the
plaintiff's future use of the part taken.
Components
Before
Parcel
Part Taken
Remainder Parcel
Step 1-Define Part Taken
Part Taken
Shown on Plat
Fee SimpleEasementsControls
“What is the land use impact of a
partial taking? Condemnation in
a suburban and urban
environment. Valuation, damages
and severance impacts.”
Step 2- Property Owner’s
Use of Part Taken
Existing Uses
Seen
Un-seen
Step 2- Property Owner’s
Use of Part Taken
Future Uses
Planned
Potential
Step 3-Define Larger Parcel
Not shown on the
Plat
Not always defined
by the deed or tax
parcel
Step 3-Define Larger Parcel
Three Unities
Unity of Ownership
Unity of Use
Contiguity
Step 3-Define Larger Parcel
Three Unities
The Appraiser’s
opinion of highest and
best use must be part
of the selection of the
Larger Parcel
Step 4-Define
Remainder Parcel
Remainder Parcel
Less fee area
More restrictions
Step 5 Future Use by the
Plaintiff of the
Part Taken
Construction on fee areas

What

When

Where
Step 5 Future Use by the
Plaintiff of the
Part Taken
Construction on easement
areas
 What
 When—how long
 Where
Future Maintenance
Alternate Approaches to
Just Compensation
1. Before and After Values
2. Value of part taken plus
resulting or severance
damage to remainder offset
by special benefits
..
Alternate Approaches to
Just Compensation
Before and After Values
Specific damages are not
quantified
Appraiser or Owner takes
everything into
consideration
Before-and-After Appraisal:
One inch strip taking with no severance damages, but you still
appraise the land, buildings, and all the site improvements.
Quantifying Damages
The landowner bears the burden of
establishing his severance damages
usually by direct evidence, in the form of
expert testimony, as to the types and
amounts of damages caused by the State's
future use of the taken portion.
Quantifying Damages
If damages have been measured by a
cost to cure,
the appraiser must justify the cost to
cure and demonstrate that the cost to cure is
less than the damage would be if the cure
was not undertaken.
Owner’s Testimony
Owner can testify to value of property-before
and after the acquisition, based on their
knowledge of their property.
Is this only true in
quick-take cases?
Owner’s Testimony
In Brannon, the owner was permitted to testify about
the before-and-after-taking value of her property
because she was personally familiar with her
property both before and after the taking.
{Allowing testimony of future impact} violates
the very justification for the treatment of property
owners as presumptively competent to testify
about the value of their property.
Ray v. Mayor of Baltimore, 430 Md. 74 (2013)
13:7 SPECIAL BENEFITS AS
A SETOFF -- DEFINED
A "special benefit" is a benefit that flows to the
portion of a particular property not taken, and
that is not shared by other properties in the
community or locality. A "general benefit" is
shared with other properties in the community
or locality.
The damages to which a landowner is entitled
because of the condemnation may be reduced if
you determine that the remaining land received a
general or special benefit because of the
condemnation.
Step 5 Future Use by the
Plaintiff of the
Part Taken
Resulting damages
OR
Special-particularbenefits
What is it?
Resulting Damages
Special Benefit
Change in highest and best
use
Increase or Decrease in
visibility from highway
Addition of public utilities
Increase or Decrease in
traffic
What is it?
Resulting Damages Special Benefit
Change in highest and best
use
What is it?
Resulting Damages Special Benefit
Change in highest and best
use
What is it?
Resulting Damages Special Benefit
Increase or Decrease in
visibility from highway
What is it?
Resulting Damages Special Benefit
Increase or Decrease in
traffic on part taken
What is it?
Resulting Damages Special Benefit
Addition of public utilities
What is it?
Resulting Damages Special Benefit
Noise
Not going to be a special
benefit, but is it always a
damage?
What is it?
Resulting Damages .
.
Noise
Any Questions ?