Evaluation of State Condemnation Process

The report summarizes the legal and procedural framework for acquiring real property for rights-of-way, focusing on five specific states. It provides information on the statutory authority and case law in each of those five states that is relevant to the acquisition of real property. It reviews each state's approach to negotiations and valuation, the use of alternate dispute resolution or other administrative procedures used to establish value, and the payment of property owner's attorney fees and related expenses.

The five states used for this study were Florida (FDOT), Missouri (MHTC), Pennsylvania (PennDOT), South Carolina (SCDOT), and Washington (WSDOT). These states were selected because they generated adequate ROW activity to provide sufficient data, reflected a range of procedural approaches, and provided readily available institutional knowledge and experience.

Because of the high costs and the potential for project delays, most ROW offices make it a high priority to resolve and settle disputes before resorting to litigation. Generally, nearly 80% of all ROW acquisitions are settled without initiating eminent domain proceedings. This percentage is lower in states where property owner's legal fees are paid. A majority of the cases where condemnation proceedings have been initiated are settled before actually going to court.

General acquisition issues that are reviewed for each of the five states in this study are:

• Pre-condemnation process (including initiation of negotiations, notice forms, exchange of appraisal and/or sales data)
• Initiating eminent domain procedures (This is basically the same in all the states studied. It involves the transition of control of the settlement from the ROW department to the legal department)
• Finding of public use and necessity (This burden is on the property owner and rare or not all successful. Because of this, it will not be elaborated on in the state by state discussion below.)
• Utilization of administrative settlements (issues of time, cost, and jury process are relevant)
• Vesting of title/possession (provides methods for possession prior to the final court judgement)

Just Compensation issues that were addressed in this study included:

• Determining Fair Market Value(FMV determination is basically the same throughout the states studied.)
• Payment of Interest
• Available damages
• Payment of property owner's legal/expert fees and costs

General conclusions and suggestions from this study involve ways of reducing ROW acquisition costs. These include early engineering plans and designs, cooperation among various departments involved in the project, use of mediation methods, well trained ROW agents with some flexibility to reach settlements, and when property owner legal fees are being paid,settlements should be made as quickly as possible, yet still reflecting fairness to the property owner. It logically follows that the more property owners' legal and related fees are paid by the state, the more condemnation cases are initiated.

Following is a summary of each of the five states (Florida, Missouri, Pennsylvania, South Carolina, Washington) reviewed in this study in regards to the their policies and procedures of the above stated issues.

Florida

Between FY 91/92 and FY 94/95, 42.9% of parcels to be acquired resulted in the initiation of condemnation proceedings. 95.6% of these settled before going to trial.

Pre-condemnation process: A notification letter is required to be sent to the property owner prior to the initiation of negotiations. This is follwed by a visit to the property owner and the presentation of the written offer of just compensation. The owner has 120 days to submit his appraisal, and then the state must provide a copy of its appraisal to the property owner within 30 days. The state does n ot provide the owner with a copy of its appraisal unless the property owner has an appraisal to "trade".

Initiating eminent domain: Prior to litigation, FDOT must inform the property owner of his rights to be paid for any court costs (pre-litigation and litigation), as well as costs for an appraisal and any necessary engineering,etc. reports. Since 1995, the payment of attorney fees is based on the "benefits" obtained by the attorney for the client. These are a percentage of the difference between the last written offer by the state and the final judgment. This method of payment replaces an hourly rate of the attorney.

Settlement: Administrative settlements must be justified and in the best interest of the state.

Some "non-monetary" items that may be considered in settlement agreements are fences, curb cuts, drainage, median cuts.

Vesting of title/possession: FDOT can take title and possession in advance of a final judgement by filing a Declaration of Taking, based on the approved estimate of value, and depositing that amount into the court.

Interest payment: Interest is paid on the difference between the Oder of Taking deposit and the Final Judgement. The rate of interest is tied to the discount rate of the Federal Reserve Bank.

Damages: Business damages can be recovered by the owner/tenant if the business has been in operation for more than 5 years at that location. This is only for partial takes-and depending on the amount of the damages, may result in a total take.

Mediation: If a settlement cannot be reached, an Order of Taking Hearing is scheduled. Mediation is often used for the Order of Taking Hearing, usually involving the issue of valuation. Most areas of dispute involve severance damages to the remainder, costs to cure, and business damages.

Payment of Attorney Fees: This is based on the "benefit" obtained for the property owner, as discussed above. This percentage method of payment penalizes the small property owner since the additional awards granted may not be equivalent to the hours needed to present the case.

Missouri

Between the years of 1990 and 1994, 70-75% of the acquisitions were reached by MHTC negotiations. 16-20% resulted in the filing of condemnation proceedings.

Pre-condemnation: MHTC must prove that it was unable to reach an agreement with the property owner prior to instituting eminent domain proceedings. Even though there no are formal policies regarding administrative settlements, settlements are pursued vigorously.

Initiating eminent domain: Upon the filing of the Order of Condemnation, the court appoints a panel of 3 commissioners to assess the just compensation and damages. This commissioners process is "relatively ineffective" because there are no set procedures, the commissioners are usually unfamiliar with condemnation law, and usually lean favorably to the condemnees. Either side has 30 days after the award to file "exceptions".

Vesting of title/possession: The unconditional payment of the commissioners' award into court is a prerequisite to possession and the passing of title.

Interest payment: Interest is paid at 6% from the date the commissioners' report is filed with the court, unless MHTC pays the award within 30 days or the action is abandoned.

Attorney's fees: These are paid only if the condemnor abandons the proceedings.

Mediation: Mediation process procedures were being drafted at the time of the writing of this study. They should be in place at this time.

Pennsylvania

In FY 95- 74% of the cases were settled prior to the necessity of filing. Of those cases filed into condemnation, 25% were settled pre-trial, 15% went to a jury, and 60% were heard by the Board of Viewers.

Pre-condemnation: It is common practice to make all reasonable efforts to contact property owners to discuss the acquisition and the offer of just compensation, and to reach an agreement through negotiation. However, PennDOT counsel indicated that condemnors are not required to negotiate with condemnees prior to initiating condemnation procedures.

Initiation of eminent domain: Declaration of Taking is filed with the court and also with the local county Recorder of Deeds Office.

Administrative settlements: Administrative settlements can be approved (depending on amount) by the District ROW Administrator, the District Engineer, or the Deputy Secretary for Highway Administration. Land swaps can not be used as a substitute for monetary compensation for just compensation.

Vesting of title/possession: Fee simple title rests in the state upon the filing of Declaration of Taking. The condemnor is entitled to possession or right of entryupon payment of, or a written offer to pay, the amount of just compensation after the period for objecting is over.

Interest: Compensation for delay is paid as interest at the commercial loan rate from the date of relinquishment of possession or the date of condemnation. No compensation for delay is payable with respect to funds on deposit with the court.

Damages: Proximity damages can be available to property "abutting the area of an improvement resulting from change of grade of a road or highway, permanent interference with access thereto, or injury to surface support, whether or not any property is taken."

Attorney fees: These are paid to the property owner only in the cases of inverse condemnation.

Mediation: A form of this used by PennDOT is the viewer's process. The viewers must provide written findings and conclusions that are binding on all parties. These findings can have exceptions filed and go to jury, or the viewers process may be waived and the case can go directly to the jury.

South Carolina

In 1993-94, approximately 20% of acquisition cases went into condemnation.

Pre-condemnation: The SCDOT appraisal must be made available to the property owner.

Initiating eminent domain: If good faith negotiations fail, the case could go to an appraisal panel with a trial option on appeal. This panel is never used by SCDOT because it is more time consuming and expensive than trial. SCDOT always goes directly to trial (SCDOT fares well before juries, as compared to other condemning authorities in the state.) A Condemnation Notice must be sent to the property owner, who has 30 days to reject the offer stated in the Notice.

Vesting of title/possession: SCDOT is vested with possession by: (1) the owner's consent in writing, (2) payment of the agreed just compensation, (3) the amount of just compensation in the Condemnation Notice deposited into court, (4) payment or depositing of the amount of the judgement.

Interest: Interest at 8% is paid from the filing of the Notice until the date of Judgement. If the judgement is not paid within 20 days, the interest rate increases to 14%.

Damages: Damages that are available are proximity damages(noise, fumes,etc) and increased traffic noise from construction.

Attorney fees: Costs and litigation expenses may be paid if (1) the proeprty owner is successful in challenging the right to condemn, (2) the property owner "prevails" at the trial-meaning that the award is at least as close to the highest valuation testified by the owner as it is to the state's testimony of value, or (3) the action is abandoned by the condemnor.

Washington

From 1989-1994, 83% of acquisitions were acquired before condemnation. Of those remaining, only about 1% actually were settled by formal condemnation proceedings-all others were settled by administrative settlements.

Pre-condemnation: All efforts are made to acquire property by negotiation.

Initiating of eminent domain: Unless under special circumstances, no property is condemned before 3 meetings with the owner. The State Attorney General's office files the condemnation action into the court. Production and exchange of appraisals is done only as ordered by the court and not through the general discovery process. It is up to the court's discretion.

Settlements: There are various inducements for settlements. Some are $200 for "expenditures", mitigation of damages with construction items, and the offer to purchase excess land from the property owner. The amount of just compensation that can be authorized over the approved value by administrative settlements is set by guidelines. Above the amount of these caps, authorization of an Administrative Review Board is necessary.

Vesting of title/possession: The title does not pass until the court enters its Decree of Appropriation, which is the last of a 3-phase condemnation process. The 3 phases are (1) decree of public uses and necessity, (2) judgment fixing amount to be paid to property owner, (3) decree of appropriation transferring title.(The amount of just compensation is filed with this 3^rd decree.)

Interest: Interest is paid at the "statutory rate" from the time of possession until the time of final judgment.

Damages: Damages available are highway proximity damages and damages to the remainder.

Attorneys fees: Reasonable attorneys fees are awarded if (1) the owner stipulates immediate possession, (2) the judgment is greater than 10% of the highest written offer delivered 30 days prior to the trial, (3) the state fails to file a written statement of settlement 30 days prior to trial,or (4) the state agrees to pay these fees as part of the settlement. If the case is settled pre-condemnation, reasonable fees not to exceed $200 can be paid.

Publications: Linda Burris (linda.burris@dot.gov)

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