12 Jan 10
Highest and Best Use in the Federal Court
Highest and Best Use
In federal eminent domain/condemnation cases the trier of fact must consider the property’s highest and best use when determining just compensation for the Defendant.[1] Highest and best use is defined as “[t]he highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future . . . to the full extent that the prospect of demand for such use affects the market value while the property is privately held.’”[2]
In order to demonstrate the highest and best use of the property, the Defendant merely must show that there is a reasonable probability that the land is both physically adaptable for the proposed use and that there is a demand for such use in the near future.[3] The court can only exclude evidence of the highest and best use where it has been demonstrated that the alleged use is impracticable and unreasonable.[4]
The threshold to making a highest and best use argument is not difficult to meet. For instance, in evaluating the highest and best use of the property, a court can consider a reasonable, non-speculative zoning change.[5] It should be noted that the United States Supreme Court has held “[t]he fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value.”[6]
If you have any eminent domain or condemnation questions please feel free to contact the attorneys of Sever Storey at 888-318-3761 or on the web at www.severstorey.com.
[1] See, e.g., Nat’l R.R. Passenger Corp. v. Certain Temp. Easements Above the R.R., 357 F.3d 36, 39 (1st Cir. 2004)
[2] Id. (quoting Olson v. United States, 292 U.S. 246, 255 (1934)) (emphasis added).
[3] United States v. 341.45 Acres of Land, 633 F.2d 108, 111 (8th Cir.1980), cert. denied sub nom. Bassett v. United States, 451 U.S. 938 (1981) (citing Olson v. United States, 292 U.S. 246 (1934)).
[4] United States v. 320.0 Acres of Land, 605 F.2d 762, 815 (5th Cir.1979) (citing Miller, 317 U.S. at 376).
[5] Id.
[6] Olson, 292 U.S. at 256 (emphasis added).
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Tags: condemnation, eminent domain, federal court, highest and best use, Sever Storey
