Re: Filene's
Toby, wouldn't there also be an issue with legislating a punishment for a past offense (i.e., that wasn't punishable at the time)?
But could you let the permits expire, take the project by eminent domain, reissue the permits, and then auction it off at a higher price. I have to believe there's something sketcy abou that, no?
Ex post facto punishment is tricky, but, generally speaking, possible. As an example, M.G.L. 21 E (the body of hazardous waste laws) manages it when it comes to responsibility for hazardous waste cleanups.
Your second question is very relevant as to how eminent domain might play out. In the market place, as we all know, a property without permits is less marketable, and therefor worth less than one that is permit loaded/shovel ready. At an eminent domain trial, a plaintiff is often able to offer testimony that a property that lacks permits is worth as much as one with permits if that plaintiff can show that it is reasonably probable that such permits could be obtained. Testimony as to that probability usually takes the form of examples of similar properties that have received the relevant permits. Evidence could also take the form of testimony about the ease of obtaining zoning changes or relief.
The trial judge is supposed to act as a gatekeeper, excluding from the jury's hearing testimony that is unduly speculative. As a practical matter, judges, though they have an excellent knowledge of the rules of evidence, have a poor knowledge of appraisal theory or the professional standards (e.g.USPAP) that apply to that art. As a result, judges typically won't exclude truly speculative evidence, and juries, in many cases made up of semi-literates, are left to ponder difficult questions that are beyond their grasp.
With that background, it is now 2012, the permits have lapsed, and let's say the city took the property for $30 million. Now let me put you in the jury box for a moment while I make plaintiff's closing argument.
"Members of the jury. The highest and best use of this site is for a skyscraper. The city gave all the permits that were necessary, so there is no need to speculate. That is proof that the site is permit ready! You have heard from our appraiser, Mr. X that this site with permits is worth $500 million. And Mr.X is one of the city's finest appraisers, as even the city's own experts concede.
"Now the city will tell you that it is worth $30 million because it has no permits. Of course it doesn't! And how convenient! They won't renew the permits, and why? So they can steal this property for pennies on the dollar! What a coincidence, huh? Don't renew the permits, and then take the property! So they can steal it, and flip it to someone else for a higher price, and pocket the difference!
"Folks, we live in the greatest country on earth. And as citizen jurors, you have a duty to keep it the greatest. The power to seize private property, your property, my property, is an awesome power. Second only to power to imprison or execute a man. And the only thing standing between government's abuse of this awesome power is you! That's right. You. The only ones who can stop the Mayor and runaway maddog government from stealing private property.
"Well, as the judge will tell you in her jury instructions, if they are going to take it, they have to pay for it. And now is the time for you to stand up for our way of life, for all of our property rights, and make them pay. On behalf of XXX, I respectfully ask you to return a verdict of $500 million.
"Thank you.
So gentle reader, there you have it. Don't bet against me! I get a contingent fee of 1/3rd.
