Sever | Storey Blog

North Carolina 2016 Condemnation By NCDOT

 

north-carolina-land-condemnation

The North Carolina Department of Transportation[1] released its March 2016 Board of Transportation Agenda.  The document confirms the Board’s determination that a right of way acquisition is necessary for specified projects and that the acquisition of land associated with those projects, either by negotiation or by land condemnation in North Carolina, has been approved including:

•    Harnett County;; I.D. No. W-5601AO;; Project No. 50138.2.42: NC 87 at SR 1115 (Buffalo Lake Road).
•    Cumberland County;; I.D. No. U-2519BA;; Project No. 34817.2.16:  Fayetteville Outer Loop from South of SR 1003 (Camden Road to South of SR 1104 (Strickland Bridge Road) Utilities.
•    Forsyth County;; I.D. No. W-5601AM;; Project No. 50138.2.40:
SR 2021 (Dobson/Kerner Roads) at SR 2024 (Old Valley School Road) in Kernersville.
•    Cabarrus County;; I.D. No. B-5548;; Project No. 55048.2.1: Bridge No. 103 over Dutch Buffalo Creek on NC 49.
•    Union County;; I.D. No. W-5601BH;; Project No. 50138.2.61: SR 1008 (Waxhaw Indian Trail Road) and SR 1346 (Beulah Church Road) near Wesley Chapel.

North Carolina Eminent Domain

Federal, state and local governments all have the power to condemn private property[2] for public purposes. This power has been delegated to government agencies including the North Carolina Department of Transportation. This power has also been delegated to “quasi-public” entities such as public utility companies, but these “private condemnors” are subject to somewhat different procedures and restrictions. Under federal and North Carolina law, all entities possessing the power of eminent domain are subject to the constitutional requirements that 1) a taking must be for a public use; and 2) the property owner must receive just compensation.

If it appears that your property will be affected by a governmental taking, then you need to be proactive. You need to act before the process begins. In general, when considering pre-condemnation actions, it is wise to seek the advice of a North Carolina attorney experienced in property law and eminent domain issues.

Contact an Experienced North Carolina Condemnation Attorney

Condemnation negotiations are very complex and each property is unique. If you are a landowner who has received a condemnation notice, or if your property is listed by the North Carolina Department of Transportation as a property approved for condemnation, contact the skilled North Carolina eminent domain attorneys at the law office of Sever Storey, LLP today.   Please call for help today at 888-318-3761.

References:

[1] http://www.ncdot.gov/board/bot/current/documents/itemr.pdf
[2] http://www.ncleg.net/gascripts/Statutes/StatutesTOC.pl?Chapter=0040A

 

What Is Kentucky Condemnation?

 

kentucky-land-ownership-condemnation

Condemnation occurs when a local, state, or federal government seizes private property and compensates the owner. The power of the government to do this is called “eminent domain”, which means that the government takes private property for public use. The land owner is then entitled to just compensation for the property.


Kentucky Condemnation Laws

Kentucky Revised Statutes[1] provides that eminent domain is available for:

•Railroads (KRS 416.010)

•Roads (416.100, 416.110, 416.350)

•Dams and other structures for electricity and navigation (416.130)

•Suppliers of water, electricity, gas or gasoline for light, heat, domestic use or power (KRS 416.140

•Telephone Companies (KRS 416.150)

•Cemeteries (416.210)

•Water Associations (416.340)

•Relocation of Public Utility Facilities (416.360)

Unlike the U.S. Constitution, which allows condemnation for a “public purpose,” Kentucky law is clear that the state constitution requires that the property or use of property condemned be available for public use.

The Kentucky Condemnation Process

The condemnation process may vary slightly depending on the situation, but in general:

•   Once the government has decided to take the property and has come up with a reasonable appraisal of how much the property is worth, or fair market value, it will offer the property owner a partial payment made by the government as compensation for the land being seized.  


•   If the owner does not wish to sell, the government files an appropriate court action to exercise the right of eminent domain.  


•   A hearing will be scheduled where the government has to show that the monetary offer to the landowner is reasonable and the property is indeed being taken for public use.  During the hearing, the landowner is allowed to present a response.  

Getting Help for Kentucky Eminent Domain

If you have received a notice of a Kentucky condemnation, it is in your best interest to consult with an experienced Kentucky condemnation lawyer at the law office of Sever Storey, LLP as soon as possible.  The government will likely try to move as quickly as possible and may even pressure you, as the land owner, to accept their settlement offer.  The attorneys at Sever Storey, LLP can effectively identify damages and select the necessary experts allowing you to properly negotiate with the condemning authority and be willing to take your case to trial if settlement negotiations fail.  Please call today at 888-318-3761 for a free consultation.

References:

[1] http://www.lrc.ky.gov/Statutes/chapter.aspx?id=39268

 

Illiana Tollway Project Dead

illiana-tollway-project

On March 11, 2016, the Daily Southtown[1] reported that Will County, Illinois officials now believe that the proposed Illiana toll road is a dead project in the state of Illinois. Will County officials stated that they plan to move on without this previously proposed project.  The controversial proposed toll road would have connected I-65 in Indiana with I-55 near Joliet.  In June of 2015, the Illinois Department of Transportation had decided to table the proposed project in light of the state’s fiscal crisis and lack of sufficient capital resources.  

Illinois Eminent Domain

If the Illiana tollway project had been allowed to proceed, the toll way would have ruined, severed, and diminished thousands of acres[2] of productive agricultural land, running through family farms that had existed for more than a century and otherwise having a negative impact on numerous Illinois land owners.  The toll road also would have polluted high quality rivers and creeks and paved over wetlands while increasing vehicle and truck traffic, likely driving away wildlife including the northern long-eared bats, a federally listed threatened species.


Illinois Condemnation Law

In the state of Illinois, eminent domain[3] is described as the inherent power of a state to take or damage private property for a public use, subject to the constitutional limitation that, “Private property shall not be taken or damaged for public use without just compensation as provided by law.” Ill. Const. Art. 1, §15 (1970). Illinois has, by legislation, delegated similar powers to governmental units, public bodies and public service corporations.  If you are an Illinois landowner and have received a condemnation notice, it is imperative to speak to an Illinois eminent domain attorney as soon as possible.

Contact an Experienced Illinois Eminent Domain Attorney

The laws concerning eminent domain can be difficult to understand.  If you receive a condemnation notice, determining the amount of compensation to which you are entitled can be complex and the skilled Illinois condemnation attorneys at the law office of Sever Storey, LLP can assist you. Please call today at 888-318-3761 for help.

References

[1] http://www.chicagotribune.com/suburbs/daily-southtown/news/ct-sta-will-county-projects-dead-st-0311-20160310-story.html
[2] http://www.openlands.org/illiana
[3] http://www.illinoiscourts.gov/circuitcourt/civiljuryinstructions/300.00.pdf

 

Four Things To Know About Ohio Condemnation

 

ohio-condemnation-eminent-domain-attorneys

When you learn that your property may be condemned, you need information and advice as to how to proceed and what actions to take. The Ohio condemnation process is complicated, making it necessary to speak to an experienced Ohio eminent domain attorney as soon as possible.  In the meantime, there are several things you should know about condemnation proceedings in the state of Ohio:

1.    What is eminent domain?  Eminent domain[1], also known as condemnation, is the power of the local state and federal government to take private property belonging to its citizens for public use, provided just compensation is paid to the owner. Some private companies or individuals may also be granted the power to condemn private property to complete certain projects intended to benefit the public.  These private companies may include redevelopment authorities, oil and gas companies, railroads or other privately-owned utility companies.

2.    Should I Discuss the Value of my Property with a Government Representative?  You should always consult with an experienced Ohio condemnation lawyer before having any conversation with a government representative.  You may be entitled to special benefits and rights from the condemning authority and a skilled eminent domain attorney can confirm all of the compensation that applies to your particular land ownership.   

3.    Should I let the Government Conduct Environmental or Other Tests?  Some of the requested tests the condemning authority may ask to perform are routine and not invasive.  Some tests, however, require boring large holes into the ground or establishing monitoring wells. This type of testing may disrupt your use and enjoyment of the property.  It is important to avoid all such testing until you have had the opportunity to speak to an Ohio condemnation attorney.

4.    What is Relocation Assistance?  Reimbursement for relocation[2] expenses is handled separately, although it is related to the eminent domain process.

Business Relocation

: The successful relocation of a business can be a challenging task. Tenants are often entitled to relocation benefits and assistance to secure a replacement site and move the business. The relocation process may require complex negotiations which are unique to the type of property taken and business operated at the site. Most importantly, the relocation of a business must be timely and well-coordinated to minimize business interruption.

Homeowner Relocation

: For a homeowner, relocation concerns may include the location of a replacement home within the same area as the condemned home, within a certain school district or within a certain distance from the owner's place of employment or family. Under relocation laws, the government is obligated to assist in finding a suitable replacement site but may not be focused on all of the issues important to you.

Contact Ohio Eminent Domain Attorneys

Eminent domain proceedings are complex and can involve complicated issues such as the property’s highest and best use, the calculation of just compensation and the damages a property has suffered due to the taking.  Property condemnation can also be a confusing and stressful process.  Having a qualified condemnation lawyer on your side to assist as you navigate the process is essential in order to protect your interests.  If you have received a notice of condemnation, contact the law office of Sever Storey, LLP as soon as possible. Call today at 888-318-3761 for a free consultation.

References

[1] http://codes.ohio.gov/orc/163
[2] http://codes.ohio.gov/oac/5501%3A2-5

 

Kentucky Condemnation Forced The Closure Of Kentucky Lake Motor Speedway

 

kentucky-land-condemnation-lake-motor-speedway

With the warming weather of spring and summer approaching, Kentucky residents may be looking for the Kentucky Lake Motor Speedway.  Unfortunately, eminent domain[1] claimed the speedway’s land, forcing the track to end their 2015 season early. The land which was claimed for a highway project, included approximately 36 acres, encompassed the racetrack’s pit area, maintenance building, ticket office and scales, rendering the racetrack’s utilities inoperable.

In 2014, the Commonwealth of Kentucky gave notice that its reconstruction of the I-24/Purchase Parkway Interchange for the I-69 corridor would take much of the real property used to operate the racetrack. After communicating with state officials, the Kentucky Transportation Cabinet filed a condemnation lawsuit in Marshall Circuit Court to take the racetrack property by eminent domain in July 2014.  On Monday, September 21, the Court granted the Commonwealth’s motion for an interlocutor order to take the land. Thereafter, the racetrack owners made the decision to close the racetrack.

Kentucky Eminent Domain

The University of Kentucky [2] Cooperative Extension Service describes eminent domain as the right of the Commonwealth to take land for a public purpose.  The term “condemnation” is a process to take private property for a public purpose under the right of eminent domain.

Contact an Experienced Kentucky Condemnation Attorney for Assistance

Many people find it difficult to understand the laws concerning Kentucky condemnation.  Whether you are a landowner with a business or a private residence, if you receive a condemnation notice, it is important to contact the skilled Kentucky condemnation attorneys at the law office of Sever Storey, LLP as soon as possible.  The entity attempting to claim your land will try to move very quickly and our attorneys can determine the amount of compensation to which you are entitled, assist you in calculations, negotiations, and more. The attorneys at Sever Storey, LLP can effectively identify damages and select the necessary experts allowing you to properly negotiate with the condemning authority and be willing to take your case to trial if settlement negotiations fail.  Please call today at 888-318-3761 for a free consultation.

References:

[1] https://racingnews.co/2015/10/18/eminent-domain-claims-kentucky-lake-motor-speedway/
[2] http://www2.ca.uky.edu/forestryextension/publications/fs9910.pdf

 

Eminent Domain And The Ohio Rural Landowner

 

ohio-eminent-domain-rural-landowner

Ohio State Bar Association[1] describes eminent domain as the power of federal, state and local governments, as well as certain private companies such as railroads and utilities, to take private property and devote it to a public use.  

The Fifth Amendment[2] of the Constitution states “… nor shall private property be taken for public use, without just compensation.” The usual process of obtaining land through eminent domain includes the passage of a resolution by the acquiring agency to take the property, known as condemnation, including a declaration of public need, followed by an appraisal and an offer, generally with some opportunity for negotiation. If the offer is not accepted, the agency may then file a petition in court to acquire the property by eminent domain. If the owner wishes to challenge the petition, the owner must file an answer in the court case in a timely manner.

Ohio Challenges to Condemnation

An Ohio landowner can potentially challenge the authority of an agency to acquire the property, the necessity of the acquisition, and/or the amount of compensation to be paid for the property within the court case. Challenging the authority or the necessity of the acquisition can often be a difficult burden for a landowner making it necessary to speak to an Ohio eminent domain attorney as soon as the landowner receives notice of the requested condemnation.   

Compensation for the Ohio rural landowner

A landowner is to be compensated for the property that is taken as well as any decrease in value or damage to the remaining portion of the property.  The measure of compensation is the difference between the value of the property before the acquisition and the value of the property after the acquisition.  This compensation may include damage to crops as well as compensation for temporary use of the land during construction. The testimony of a qualified appraiser is generally necessary to prove the compensation and many eminent domain trials end up dominated by the testimony of the parties’ appraisers.

Contact an Ohio Condemnation Attorney

Condemnation negotiations are very complex and each property is unique. If you are a landowner involved in easement agreement negotiations and other eminent domain proceedings, the condemning authority will try to get your consent quickly. Contact the skilled Ohio condemnation attorneys at the law office of Sever Storey, LLP toady. Please call today at 888-318-3761 for help.

References:

[1] https://www.ohiobar.org/ForPublic/Resources/LawYouCanUse/Pages/LawYouCanUse-659.aspx
[2] https://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992-10-6.pdf

 

North Carolina Eminent Domain Procedure

 

north-carolina-eminent-domain-procedure

In the state of North Carolina, eminent domain[1] is defined as the power to divest right, title, or interest from the owner of the property and vest it in the possessor of the power against the will of the owner upon the payment of just compensation for the right, title or interest divested.  

What Should a Landowners Do After Receiving a Notice?

If a landowner receives notice that their land is being taken, there are time limits for when they must take legal action depending on who or what entity is condemning the land. The notice is known as a “condemnation complaint” and the document will state why the property is being taken, how much is being taken, and how much it is believed to be worth. Pursuant to North Carolina eminent domain law, a landowner must take legal action within these time limits if a condemnation complaint is filed by one of these agencies:

- North Carolina Department of Transportation (NCDOT)[2]

If the NCDOT is condemning the property, the landowner must file an answer to its condemnation complaint within 12 months.

- North Carolina Department of Administration (NCDOA)[3]
- Local Governments (cities and counties) or Railroads, Utilities and Pipelines (power, water, sewer, etc.)

If the NCDOA or a local public condemnor is seizing the property, the landowner must file your answer within 120 days.  In the case of a private condemnor, a property owner may have to respond in as few as 10 days before the Clerk of Court appoints commissioners.

Inverse Condemnation in North Carolina

When land is taken or damaged and the landowner has not been served a complaint or declaration, it is known as “inverse condemnation.” To file for compensation for inverse condemnation by the NCDOT or NCDOA or a local public or private condemnor, the landowner must generally file an inverse condemnation complaint[4] within 24 months of the date the affected property was taken or the completion of the project involving the taking, whichever is later, although there are exceptions to this rule.

Contact an experienced North Carolina eminent domain lawyer for assistance

Many people do not understand the intricate laws concerning eminent domain.  If you receive a condemnation notice, determining the amount of compensation to which you are entitled can be complicated and the skilled North Carolina eminent domain attorneys at the law office of Sever Storey, LLP can assist you in calculations, negotiations, and more. Please call today at 888-318-3761 for help.

References:

[1] http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_40A/GS_40A-2.html
[2] http://www.ncdot.gov

[3] http://www.doa.state.nc.us/default.aspx
[4] http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_136/GS_136-111.html

 

Illinois Senator Opposes Eminent Domain

 

illinois-senator-opposes-eminent-domain

On January 13, 2016, Illinois
State Senator Kyle McCarter[1] called on state and federal courts to reject any requests from Clean Line Energy Partners for eminent domain authority regarding the Grain Belt Express Clean Line project. The project, being backed by the Clean Line Energy Partners, plans to create transmission lines to deliver wind energy across the Midwest from western Kansas. The project proposes the inclusion of private landowners in Illinois, which has recently raised concerns from advocates of landowners’ rights.

Senator McCarter expressed his concerns about potential eminent domain actions and the involvement of the Illinois Commerce Commission in the projects. He said the ICC should reconsider its decision to give the project a designation as a “public convenience and a necessity,” specifically calling out potential threats to private landowners.

Senator McCarter’s concerns are included in a Senate resolution filed on January 13, 2016.

Senator McCarter fought a similar battle last year when he supported Senate Bill 1726, which required the ICC to notify landowners in a path of proposed transmission line via registered mail. That bill took effect last summer.

Illinois Eminent Domain

In the state of Illinois, eminent domain[2] is described as the inherent power of a state to take or damage private property for a public use, subject to the constitutional limitation that, “Private property shall not be taken or damaged for public use without just compensation as provided by law.” Ill. Const. Art. 1, §15 (1970). Illinois has, by legislation, delegated similar powers to governmental units, public bodies and public service corporations. If you are an Illinois landowner and have received a condemnation notice, it is imperative to speak to an Illinois eminent domain attorney as soon as possible.

Contact an Illinois Eminent Domain Attorney for Assistance

The laws concerning eminent domain can be difficult to understand. If you receive a condemnation notice, determining the amount of compensation to which you are entitled can be complex and the skilled Illinois condemnation attorneys at the law office of Sever Storey, LLP can assist you. Please call today at 888-318-3761 for help.

References:

[1] https://www.wind-watch.org/news/2016/01/25/mccarter-opposes-eminent-domain-in-wind-energy-project/
[2] http://www.illinoiscourts.gov/circuitcourt/civiljuryinstructions/300.00.pdf

 

North Carolina Eminent Domain Amendment And The Requirement Of Public Use And Benefit

 

north-carolina-eminent-domain

North Carolina has a long-recognized requirement that an eminent domain action be for the public use and the public benefit.  Recent legislative activity reflects that lawmakers have a desire to narrow the requirement through a state constitutional amendment.

The North Carolina General Assembly, House Bill 3 [1], is entitled: "AN ACT TO AMEND THE NORTH CAROLINA CONSTITUTION TO PROHIBIT CONDEMNATION OF PRIVATE PROPERTY EXCEPT FOR A PUBLIC USE, TO PROVIDE FOR THE PAYMENT OF JUST COMPENSATION WITH RIGHT OF TRIAL BY JURY IN ALL CONDEMNATION CASES, AND TO MAKE SIMILAR STATUTORY CHANGES."

The proposed amendment would add a Section 19.1 to Article I [2] of the North Carolina Constitution. The following text would be added by the proposed measure's approval:

“Sec. 19.1. Eminent domain.  Private property shall not be taken by eminent domain except for a public use.  Just compensation shall be paid and shall be determined by a jury at the request of any party.”

The amendment had overwhelming support in the N.C. House, where it passed by a vote of 113-5.  Although the bill could theoretically appear on the May 3, 2016 ballot in North Carolina, the fact that the General Assembly will not reconvene for it next legislative session until April 2016 makes this unlikely.  Nevertheless, landowners and legislators can continue to advocate and support this constitutional change.

Public Use and Public Benefit

The current two-part test will remain the legal standard until there is such a legislative change.  The North Carolina Court of Appeals recently illustrated the current public use and benefit analysis in the case of “Town of Matthews v. Wright”, Case No. COA14-943[3].

The opinion of the court provides that a taking of land by a local government must be for both a public use and a public benefit.  In that instance, the Town could not show a public benefit, and thus it improperly exercised its eminent domain powers.  The case involved multiple legal appeals and a long saga where a municipality pursued its condemnation case based in part upon personal conflicts between the town and the landowners.

It is unclear how this case would be read in conjunction with House Bill 3, which specifically requires only “public use”, but the House Bill supporters have generally wanted to make it harder to condemn private property for a project that is not purely public.  In order to allow this measure on the North Carolina ballot, it will need to make it out of the state Senate by a 60% vote.  Property owners can contact their state representatives to advocate for important eminent domain reforms that will further prevent abuse of this state power and protect the rights of landowners.

Contact an experienced North Carolina eminent domain lawyer for assistance

Many people do not understand the intricate laws concerning eminent domain.  If you receive a condemnation notice, determining the amount of compensation to which you are entitled can be complicated, and the skilled North Carolina eminent domain attorneys at the law office of Sever Storey, LLP can assist you in negotiations, litigation and more. Please call today at 888-318-3761 for help.

References:

[1] http://www.ncga.state.nc.us/Sessions/2015/Bills/House/PDF/H3v1.pdf
[2] https://ballotpedia.org/Article_I,_North_Carolina_Constitution

[3] http://www.matthewswatch.com/wp-content/uploads/2015/05/NCCOA-opinion-4-20-2015.pdf

 

2016 Ohio Eminent Domain Law

2016-ohio-eminent-domain-law

Ohio State Bar Association [1] describes eminent domain as follows:

“Eminent domain is the power of federal, state and local governments and even certain private companies, including railroads and utilities, to take private property and devote it to a public use. An entity with this power is sometimes referred to as a “condemning authority." Taking of property by eminent domain frequently occurs in Ohio for uses such as construction of roads, libraries, or even airports. Both the U.S. and Ohio constitutions provide that property shall not be taken for a public use without the payment of just compensation.”

2015 OHIO CASE PROTECTS LANDOWNERS

On November 2, 2015, in the case of “City of Perrysburg v. Roland R. Carter and Sue Ann Carter,” case number 2015 9004A [2], the court ruled that the City of Perrysburg’s attempt to immediately seize the land of eleven local homeowners exceeded its power, given the Ohio Constitution’s protection of private property rights. The case concerned the practice known as “quick-take,” where governments claim to immediately own private property upon the filing of a Complaint, before any hearing or trial. Specifically, the city had attempted to seize property for sidewalks, a bike path, and what they referred to as “other municipal purposes.” While the Ohio Constitution allows this immense power for “making or repairing of roads,” local governments have increasingly sought to use quick-take for many other purposes. In his ruling, Judge Woessner of the Wood County Probate Court concurred that the practice cannot be expanded beyond making or repairing roads. Although Ohio cities may still acquire property for such purposes, the Court’s ruling clarifies that they must attempt to negotiate and agree with homeowners, rather than exercising force as a first option.

Contact an Ohio Condemnation Attorney

Condemnation negotiations are very complex and each property is unique. If you are a landowner involved in easement agreement negotiations and other eminent domain proceedings, the condemning authority will try to get your consent quickly. Contact the skilled Ohio condemnation attorneys at the law office of Sever Storey, LLP today. Please call today at 888-318-3761 for help.

References:

[1] https://www.ohiobar.org/ForPublic/Resources/LawYouCanUse/Pages/LawYouCanUse-659.aspx
[2] http://www.ohioconstitution.org/wp-content/uploads/2015/11/Fort-Meigs-Order-on-Quick-Take.pdf

 

Educational Videos

Sever Storey is passionate about helping landowners. We have created a video library packed with knowledge and information to help landowners gain more facts about the eminent domain process. Please watch the video's and let us know if you have any questions that we can help answer.

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Inverse Condemnation

The obvious government acquisition is the State, through its agents, knocking on your door and issuing you a notice of condemnation with a corresponding offer of just compensation. The more insidious acquisition is the State, through its agents, rendering your property worthless or significantly...

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