Eminent Domain

Governmental Property Eminent Domain: Kelo V. City of New London 545 U.S. 469 (2005) 1901 Ala. Const. Art. I § 23 1901 Ala. Const. Art. XII 235 Ala. Code § 18-1A-21 et. Seq. Ala. Code § 11-47-170 Ala. Code § 11-80-1 et. Seq Municipal Property (Chapter 35) Vacation of Streets: Ala. Code.§ 23-4-20 Annexation

Eminent Domain

Taking of Private Property Eminent Domain- Power of the sovereign to take property. Condemnation- Process by which power of eminent domain is exercised. Pollard V. Hagan. 44 U.S. 212 (1845)

When can private property be taken? Who can force private land owners to give up their land?

1. Municipally Owned 2. Eminent Domain 3. Adverse Possession Governmental Property 1. Municipally Owned 2. Eminent Domain 3. Adverse Possession

1. Municipally owned property

City may Buy and Sale Property Purchase Pay owner Right of eminent domain for public use. Conveyance Governing body determines property not needed for public use. Mayor conveys

SECTION 23 Eminent domain. That the exercise of the right of eminent domain shall never be abridged …to prevent the legislature from taking the property ….and subjecting them to public use …, without the consent of the owner; provided…just compensation shall, in all cases, be first made to the owner; …

Health and Nuisance Demolition of Unsafe Structures Any incorporated municipality 11-53B-2 Class 5, 6 or 8 Municipalities 11-53A-1

The cost …assessed against the property …. Section 11-53B-2 Demolition or repair upon finding of necessity and notice given. Upon a finding of necessity by the governing body of any incorporated municipality …may demolish or repair a building or structure ….which are found by the governing body of the municipality to be unsafe to the extent of being a public nuisance from any cause. The cost …assessed against the property …. (Act 2002-522, p. 1355, §2.)

Vacation of Streets Closing and Vacating Streets, Alleys, & Highways Ala Code Title 23 Town Surveys, Plats, or Maps: Ala Code Title 35 Cost to Vacate – Vacation of Right-of-Way Fee: Ala Code Title 11

Churches

Closing a Street Vacation Proceedings Abutting landowners Section 23-4-20 File a petition with the governing body #28-101 Municipality County Governing body schedules a public hearing at regular meeting and gives notice 4. Governing body may notify: planning and zoning dept., engineering dept., utility dept., legal dept.

Notice Requirements Publish notice in newspaper of general circulation Publish once a week for 4 consecutive weeks Post notice at county courthouse Serve by mail,30-day notice on abutting landowners Serve 30-day notice on any entity with utility lines on or under the property>

Notice – Content and Response Describe street to be vacated Time, Date, and Location of scheduled meeting

Objections by citizens Any citizen allegedly affected may: Submit written objections Request to be heard at the scheduled meeting

Hearing to Vacate Motion to adopt a resolution to vacate Motion to approve – made by commissioner of district affected (if in County)

Resolution Contents Accurate description of the street vacated, Names of all abutting landowners, Names of all affected owners of land, That it is in the public interest to vacate, and The vacation will not deprive other property owners of reasonable and convenient means of ingress and egress.

Fee paid by Abutting Landowners Fee: “equal to the fair market value of the land… added to the abutting landowners.” Fee set by governing body. Public hearing to determine value after 5-day notice in newspaper (unless waived). Notice or waiver noted in minutes unless landowners are present or represented. Fee not to exceed assessed value per square foot of abutting lots. Governing body’s assessment, if less, is conclusive.

Filing the Resolution Filed in Probate Court of the county Divests all public rights and liabilities Title vests in abutting landowners Utility easements are not affected Notice published in newspaper within 14 days of the resolution’s adoption

Appeal Any affected party may appeal within 30 days. Appeal is to the Circuit Court of the county. Trial is de novo. Either party may demand a jury. Governing body’s decision is not suspended unless bond is given (as determined by the judge). Appeal to Court of Civil Appeals within 42 days.

Alabama Constitution SECTION 23 > Eminent domain. …the exercise of the right of eminent domain shall never … prevent the legislature from taking the property …of incorporated companies, and subjecting them to public use in the same manner in which the property …of individuals are taken …; but private property shall not be taken for, or applied to public use, unless just compensation be first made therefore; nor shall private property be taken for private use, …; but just compensation shall, in all cases, be first made to the owner; …

Alabama Constitution SECTION 235 Taking of property for public use by municipal and another corporations. Municipal and other corporations and individuals invested with the privilege of taking property for public use, shall make just compensation, …obtained the judgment of condemnation from a right of entry, provided the amount of damages assessed shall have been paid into court in money, and a bond shall have been given in not less than double the amount of the damages assessed, …

What is Public Use? Alabama Constitution Sections 23 & 235 “taking for a public use” Blighted property- Municipality may repair or demolish unsafe structures. Section 11-53B-1 Tax Increment districts- Municipalities may take 50% blighted areas to bring about economic development. Public Taking for Private Use- Municipality taking for economic development is a public use. Kelo V. New London, Connecticut 125 S.Ct. 2655 Municipality or county may not condemn property for private use or to increase tax revenue. (does not apply to blighted areas). Section 11-47-170 &11-80-1

Alabama Eminent Domain Statute “a municipality or county may not condemn property for the purposes of private retail, office, commercial, industrial, or residential development; or primarily to enhance tax revenue; or to transfer to a person…” Exception: eminent domain by a municipality…or public entity of a blighted area for redevelopment Property condemned and not used for the purpose condemned must be offered for sale back to the person from whom condemned.

Section 11-47-170Acquisition of lands, easements, etc Section 11-47-170Acquisition of lands, easements, etc., by municipality; limitations on condemnation. …town or city shall have full power and authority to acquire by purchase the necessary lands or rights, easements… (b) Notwithstanding any other provision of law, a municipality or county may not condemn property for the purposes of private retail, office, commercial, industrial, or residential development; or primarily for enhancement of tax revenue; …, but just compensation, in all cases, shall continue to be first made to the owner. … (c) Property condemned pursuant to the authorizations as described in subsections (a) and (b), if not ever used for the purpose or purposes for which it was condemned or for some other public use, that is subsequently determined to be sold, shall be first offered for sale to the person or persons from whom the property was condemned, …if the offer shall not be accepted within 90 days from the date it is made, the property may be sold to any other person, but only at public sale after legal notice is given. (Code 1907, §1439; Code 1923, §2295; Code 1940, T. 37, §507; Act 2005-313, 1st Sp. Sess., §2.)

Who May Condemn? State of Alabama University of Alabama/ Auburn Prisons Airports Cities Counties Telephone Railroads Schools

State Procedure Condemnor / Appraisal Entry before Purchase Survey Tests Photographs Samples

State Procedure Notify Landowner No injury to land Landowner objects Court order/bond Make an Offer Incidental benefits Exception Roads Water Sewer

Contents of Complaint Parties Plaintiff All defendants Legal description Basis of right to take Purpose Map or description Filed in Probate Office

Defendant’s Response Answer with objection Not required

Hearings Right to condemn Just Compensation Apportionment hearing Probate Judge appoints 3 commissioners to determine value Commissioner’s report filed within 20 days Probate Court receives report and enters judgment of condemnation within 7 days. Either party may appeal to circuit court within 30 days. Circuit court trial is de novo Apportionment hearing

Right of Entry After judgment of condemnation Must first pay before entry

Value “Fair market value” Opinion Before and after value Relocation expense Highest and best use Opinion Landowner Expert witness

Partial Taking Inverse condemnation Uneconomic remnant

Private Condemnation Landlocked 30 feet wide easement To nearest and most convenient road

Solo and Small Firm Section of the Alabama Bar.