United States District Court, N.D. Alabama, Southern Division
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
December 5, 2011, the City of Alabaster re-zoned
approximately 142 acres of land that plaintiff South Grande
View Development Company, Inc. owned and had planned to
develop. SGV has asserts a claim against Alabaster under the
Fifth Amendment of the U.S. Constitution for a regulatory
taking. On November 22, 2017, the Court conducted a pretrial
hearing to examine a number of evidentiary issues and to
discuss the possibility of bifurcating the trial of liability
and damages issues. The Court issues this order to address
various issues that arose during the pretrial hearing.
Takings Clause of the Fifth Amendment states that
“private property shall not be taken for public use,
without just compensation.” U.S. Const. amend. V. A
taking may occur when a city “exercises its police
power through regulation which restricts the use of
property.” A. A. Profiles v. City of Fort
Lauderdale, 850 F.2d 1483, 1486 (11th Cir. 1988)
(citations to Supreme Court precedent noted but omitted from
this opinion). “[I]f a regulatory undertaking is
confiscatory in nature, it is a taking.” Wheeler v.
City of Pleasant Grove, 664 F.2d 99, 100 (5th Cir. Unit B
Dec.1981), cert. denied, 456 U.S. 973
determining whether a taking has occurred, the factfinder may
consider evidence relating to the reason for the regulatory
action. See, e.g., Wheeler, 664
F.2d at 100 (“Further, the city's purpose in
enacting the measure was not rational. A developer has its
right to be free of arbitrary or irrational zoning standards.
Additionally, if a zoning ordinance is clearly arbitrary and
unreasonable, having no substantial relation to the public
health, safety, morals, or general welfare, it must be struck
down.”) (citations and internal quotation marks
omitted); see generally A. A. Profiles, 850 F.2d at
1488. Therefore, subject to specific objections, SGV may
present evidence that may demonstrate that the City's
decision to rezone the property at issue was arbitrary.
Subject to specific objections, the City may introduce
evidence to contradict evidence that SGV may offer.
goal of the Fifth Amendment's just compensation
requirement is to return the affected property owner to
‘as good position pecuniarily as he would have occupied
if his property had not been taken.'” A.A.
Profiles, Inc. v. City of Fort Lauderdale, 253 F.3d 576,
583 (11th Cir. 2001) (quoting United States v.
Miller, 317 U.S. 369, 373 (1943)). “Any inquiry
into just compensation must be controlled by principles of
equity and fairness to both the property owner and the
government.” Id. (citing Bauman v.
Ross, 167 U.S. 548, 570 (1897)).
burden at trial of establishing the amount of just
compensation for a taking is on the landowner.”
United States v. An Easement & Right-of-way Over 6.09
Acres of Land, More or Less, in Madison Cty., Alabama,
140 F.Supp.3d 1218, 1231-32 (N.D. Ala. 2015) (citing
United States v. 8.41 Acres of Land, More or Less,
Situated in Orange Cty., State of Tex., 680 F.2d 388,
394 (5th Cir.1982); United States v. Smith, 355 F.2d
807, 809 (5th Cir.1966)).
starting point for any inquiry into damages in a takings
cases is to query ‘[w]hat has the owner
lost?'” A.A. Profiles, Inc. v. City of Fort
Lauderdale, 253 F.3d 576, 583 (11th Cir. 2001) (quoting
Boston Chamber of Commerce v. Boston, 217 U.S. 189,
195 (1910)). “The district court must limit its
inquiry, however, to the value of the property as of the day
of the taking”; the plaintiff's “precarious
financial state and the later foreclosure are relevant only
to the extent that they could have affected the
property's market value.” 253 F.3d at 585.
Therefore, the City may introduce evidence concerning
encumbrances on the property at issue only for purposes of
assessing the property's market value at the time of a
taking if SGV carries its burden of proving that a taking
are no absolute standards outside of the requirement that the
compensation paid for a taking be ‘just, '”
but “courts have established some working rules to
guide the inquiry. In cases where government regulation has
permanently rendered property worthless, courts have
generally adopted the ‘market value' test, which
provides that the measure of just compensation is the market
value of the property at the time of the taking.” 253
F.3d at 583. “Market value is generally determined from
what a willing buyer would pay in cash to a willing
seller.” 253 F.3d at 583 (internal marks omitted).
“In determining the reduction in the market value of
the parcel, the court must consider any aspect of the
property that could have affected the amount a reasonable
buyer would be willing to pay.” Id. at 585
(citing Almota Farmers Elevator & Warehouse Co. v.
United States, 409 U.S. 470, 474 (1973)).
long line of precedent establishes a general rule in this
circuit that ‘an owner of property is competent to
testify regarding its value.'” 140 F.Supp.3d at
1239 (quoting Neff v. Kehoe, 708 F.2d 639, 644 (11th
Cir.1983)) (collecting cases). “The owner is generally
presumed to be qualified to give such an opinion based on
‘his ownership alone.'” Id. (quoting
Berkshire Mut. Ins. Co. v. Moffett, 378 F.2d 1007,
1011 (5th Cir.1967)) (collecting cases). “In fact, the
Eleventh Circuit has gone so far as to suggest that a
witness's opinion of value of his personal property is
generally admissible even if ‘self-serving and
unsupported by other evidence.'” Id. at
1239-40 (quoting Neff, 708 F.2d at 644);
id. at 1239 (citing United States v. 329.73
Acres of Land, Situated in Grenada & Yalobusha Ctys.,
State of Miss., 666 F.2d 281, 284 (5th Cir. 1982),
on reh'g, 704 F.2d 800 (5th Cir. 1983)
(“[O]pinion testimony of a landowner as to the value of
his land is admissible without further qualification. Such
testimony is admitted because of the presumption of special
knowledge that arises out of ownership of the land.”).
The Eleventh Circuit “has rejected arguments contesting
the admissibility of an owner's testimony on the value of
his property on the ground that it lacks a sound basis,
concluding that such matters go only to the weight of the
testimony and thus are to be challenged through
cross-examination and refuting evidence.” Id.
at 1240 (citing Gregg v. U.S. Indus., Inc., 887 F.2d
1462, 1469 (11th Cir.1989)); see Neff, 708 F.2d at
943 (holding that district court should allow property owner
to provide lay opinion about value of property where lay
opinion was based on publications concerning the property,
appraisals of the property, and the property owner's
experience regarding the property).
from the market value test is appropriate where the
property's market value is too difficult to determine or
when applying the test would ‘result in manifest
injustice to [the] owner or public....'” 253 F.3d
at 583 n. 8 (quoting United States v. Commodities Trading
Corp., 339 U.S. 121, 123 (1950)); see also United
States v. 480.00 Acres of Land, 557 F.3d 1297, 1307
(11th Cir. 2009) (“In some cases strict adherence to
market value and comparable sales will result in manifest
injustice to the owner or to the public, and courts must
apply special rules and standards to arrive at
“just” compensation.”). Thus, if SGV is
able to establish a taking, and if SGV has difficulty
establishing a market value calculation, then SGV may
establish an alternative measure of damages that would return
SGV to as good a position pecuniarily as SGV would have
occupied if its property had not been taken. For instance,
SGV potentially could recover the cost of preparing the
property at issue for R-4 lots.
 The Fifth Amendment applies to the
states through the Fourteenth ...