CASTLE COALITION - 2002

"Eminent domain abuse survival guide"


As soon as you hear that a project may be in the works that will affect your property, you should get as much information as you can, as soon as possible. Trying to get information out of your local government can be frustrating, but don’t be discouraged. Be polite, but persistent. This section gives some ideas of the information you should look for and how to get it.

How to get information

Finding out information about a possible project can be extremely frustrating. It is important to be both polite and persistent. You will have to deal with the same people over and over again, so you want them on your side as much as possible. On the other hand, don’t give up if you run into a dead end.

If you saw a newspaper article about a possible project, it can’t hurt to contact the reporter and ask for more information. If nothing else, the reporter may tell you where to look for more information.

If you are on good terms with anyone in city government, from a city councilperson to someone in the tax division, that person can be helpful in finding out where you need to go for information.

Your city or town planning department may know about development plans for your area. It may also have information about whether your area has been declared blighted. If your municipality has a redevelopment agency, that agency should have copies of studies and other documents.

To get copies of documents, if they are not available from the library or any other easy source, you can do a freedom of information request. Freedom of information requests are an excellent way to get information from your local government. Every state has a slightly different law, but they all generally require that the government provide information to its citizens. See Caslte Coalition links to FOIA Sites for information on your state’s laws. A freedom of information request is very simple. Usually, it should say “Pursuant to [[your state’s freedom of information law]], I request the following information:” Be very specific about what information you want. If you live in a large city or are requesting information from the state, it’s often a good idea to call the city or town clerk first to identify the person to whom you should send your freedom of information act request. That will make your request go quicker. In a small town, that probably won’t be necessary. Your request can be sent to the municipality itself or, if you know the agency that has the information, you may be able to send it to the agency directly.

Once a project is in the planning stages, documents often are available at your local library and/or town or city administration building. That is of course the easiest way to find things.

Keep all the documents you receive, including notices and brochures. You will be surprised what you might need to refer back to later.

Take notes. Every time you get information from a representative of the government or a developer, write down the date, the time, the name of the person you spoke to, and what that person said.

What information you need

Find out everything that has happened so far. Get copies of all documents. These may include:

* Studies conducted of your area
* Transcripts or minutes of hearings or other meetings about your area
* Reports about whether your area has been designated a “slum,” “blighted area,” “redevelopment area,” in need of redevelopment, or anything similar
* Findings made by a government agency about your area
* Ordinances passed about your area
* Traffic studies or environmental studies about your area
* Development plans or proposals for your area
* Requests for proposals for development of your area
* Development agreements with a private developer to develop your area

Find out if your property has been designated as a “slum,” “blighted area,” “redevelopment area,” in need of redevelopment, or anything similar.

Get copies of the statutes governing eminent domain in your state. These are usually available through your state’s website. You can also look on http://www.findlaw.com/11stategov/ and follow the links to your state’s statutes. You may also need to look at local ordinances for your city or town. Those should be available online or at the municipal library.

Find out the process for challenging the condemnation of your property in court and a timeline for legal proceedings. States vary widely on these procedures, and it is easy to miss deadlines. You absolutely must find out what the schedule is in your state. For example, in some states, you must challenge the designation of your area as a blighted area within 30 days, or you can never do so. In other states, you cannot bring such a challenge until the government actually tries to condemn your property. In some states, you must be in attendance at certain hearings or meetings in order to complain about the results later. In other states, attendance is not necessary. In a few states, you have to go to court to challenge the constitutionality of taking your property long before the property is even taken. In most states, you have to wait until the government tries to take the property. To get the answers to these questions, you can read the statutes yourself, but it is usually a good idea to speak to a local condemnation lawyer. You can always get a consultation and get that person to describe the timeline to expect.

Find out the process for approval of the project. This timeline will be similar to the legal timeline, but it will include more public hearings and meetings. For example, there may be four more hearings before the project is finally approved. That gives you four opportunities to argue to the relevant bodies why the project is a bad idea. It also tells you how much time you have to mount opposition to the project and to condemnations. There may be different timelines for different approvals, so be sure to get all the information. For example, there might be one timeline for zoning, one for environmental review, one for redevelopment area designation, and one for condemnation. Again, this varies a lot by state, so be sure to check out your local procedures. To get this information, you will need to either speak to a local lawyer or to a helpful person in city government.

Consulting with a local lawyer

You should try to find a lawyer who knows about eminent domain and who is sympathetic with the plight of property owners. One good source is www.ownerscounsel.com, an association of lawyers that specialize in eminent domain and regularly represent owners in condemnation cases. There is one member per state, so if the lawyer for your state has a conflict or is not geographically close enough, he or she may be able to refer you to someone else. You can also look on www.martindale.com or www.findlaw.com for lawyers in your area who specialize in eminent domain, but when you talk to the person, make sure they have represented owners as well as condemning agencies. Always make sure the lawyer you contact does not represent the government or the developer before giving information about your case.

Even if you are not ready to hire a lawyer for the long term, you can arrange to have a consultation to find out basic information. The following is a list of some information that would be helpful for almost everyone to know. It is not an exhaustive list of what you should discuss with your lawyer, just some basic questions that you will need answers to, whether from a lawyer or from someone else.

* What is the current procedural status of this project?
* Has my property been designated as part of a redevelopment project?
* Has my property been designated as blighted?
* Is there any way to contest the designation of my property as blighted?
* If so, how would I do that and when?
* How would I go about contesting the condemnation of my property?
* Will there be further hearings on the project or condemnation?
* When will the hearings be and what agencies will hold them?
* Will I have an opportunity to speak?
* Do I have to speak in order to preserve my rights later?
* Can I submit written objections or evidence to government agencies and how?
* What is a timeline of every hearing, report, and notice that will come out before my property is condemned?
* At which steps do I have an opportunity to object to the project or the condemnation?
* When can I expect a condemnation action may be filed?
* How long will I have to respond after that?
* How does compensation work in my state?
* What will I be compensated for? How much are relocation expenses?
* What are legal fees for contesting a condemnation? What are legal fees for securing additional compensation for a condemnation?

Alarm bells should go off when you hear…

This is a great project, and “eminent domain will only be used as a last resort.” That just means that if the residents or businesses don’t agree to sell, eminent domain will be used.

“We’ll take care of you.” You may be willing to move if there is sufficient compensation. That’s fine, but don’t be fooled by any oral agreements as to what will happen. If you don’t have it in writing, it doesn’t mean anything at all. On the whole, while there may be a few exceptions, anything that a government employee tells you is not binding on the government agency.

“We want to include you in the redevelopment project area, but you won’t be condemned.” Even a written promise that you will not be condemned can’t be enforced later if the government changes its mind. For compensation issues, the only protection is to get it in writing. For condemnation, the only protection is to make sure the agency does not have the power to condemn and that means making sure you are not in the redevelopment area or the agency is not authorized to do condemnations.

A word about deadlines and dates

You may receive notices or other information in the mail. You should look at these notices to see if they mention that you must do something by a certain date or in a certain time. A lot of times, owners will see something like this, worry about it for a week, perhaps ask someone about it, wait another week, and then miss the deadline. DO NOT IGNORE DEADLINES . In law, if you miss a date to do something, you may lose important rights and opportunities and there may be no way to correct your mistake later. Some documents cannot be submitted even one day late, so if there is a deadline, you must take action immediately so that there will be time to get everything done, find a lawyer if you need one, and give that lawyer enough time to file papers.

A Rough Timeline of Eminent Domain

This gives a general timeline for the eminent domain process with suggestions about what to do at each stage. Bear in mind that states vary quite a bit. In your state, these stages may be in a different order. This Timeline is a supplement to the information in the other sections of the Survival Guide.

(1) Discussions between the city and developers
Discussions at a Redevelopment Agency or City Council about a possible project
News stories about the possibility of a project

These are the first rumblings about a potential project. When you hear these, start organizing and making it clear that there will be massive citizen opposition to any effort to take people’s property.

Public hearings about designating an area as blighted or a redevelopment zone

This will happen in some situations but not in others. It is possible to condemn property without a blight designation. Often, however, when the government wants to take away your property, it will designate the property as “blighted.” The advantage of a blight designation (from the perspective of the government) is that once the designation is in place, the government can take property at will within the area. In most states, this is called a blight designation, and there is some requirement that the property be deteriorated or substandard. However, other states may have lesser requirements for designation. Also, states use different language—most refer to designating a property as blighted, but it could also be a designation of the area as an “urban renewal zone,” “redevelopment area,” or something similar.

It is very important to appear at these public hearings and object vigorously to the designation of your property as blighted. Introduce pictures of the properties and even video to show that the property is not blighted. Think of any other evidence that would show the area is thriving, including information about retail sales, lack of crime, property taxes paid, physical improvements you have made. You want to put all of that evidence into the record. It’s helpful to have pictures, video and documents—something more than just testimony, although you want that also. If you can afford it or someone will do it for free, ask an expert to do a study showing that the property is not blighted. Finally, the developer has usually commissioned a study that will claim the area is blighted. Go through it with a fine-toothed comb. Then present every inaccuracy, including as much documentation as you can that the information in the study is false.

Vote that the property or area is blighted.

Once there has been a vote that the property is blighted, you need to know your state’s law on challenging blight designations. In some states, you have 30 days to challenge the designation. In some states, you have 60 days. And in other states, you do not bring the challenge unless and until the government tries to condemn your property. Obviously, it is very important to know what category your state falls into, because you may need to bring a legal challenge very soon.

Hearing on authorization of eminent domain

In some states, this hearing is combined with the hearing on whether the property is blighted. In other states, it is not. In any case, you obviously need to make sure you appear at the hearing and present as vocal and powerful an opposition to the authorization of eminent domain as you possibly can. Cities can authorize redevelopment projects and funding without authorizing eminent domain.

Vote that eminent domain is authorized

As with the hearing, the vote authorizing eminent domain may or may not be combined with the vote that the property is blighted. In a few states, you will have 30 days, or some other short period of time, to challenge the authorization of eminent domain. In most states, you will challenge eminent domain if and when the city tries to take your property. However, make sure you know if you need to bring a challenge immediately.

An appraiser comes to visit

That means that the government is going to figure out how much it thinks your property is worth and then make you an offer to purchase it. In some states, the government must give you a copy of the appraisal. In others, that is not required. In most states, you must allow the appraisal to take place. However, there are some states where you can refuse. Also, if the government has no statutory authority to condemn your property at all, you may be able to refuse to let the appraiser on your property. If you want to exclude the appraiser, it’s a good idea to consult a lawyer. Finally, in most states, you can require that the city “indemnify” you for letting the appraiser in. For example, if you own a machine shop, you may want to ask the city to release you from any liability in case the person slips or injures themselves on the visit.

“Good faith” negotiations

The government is required to at least try to purchase the property from you voluntarily. Representatives of either the government or the developer will approach you and make you an offer to purchase your property. If you wish to, you can talk to them. These negotiations may also occur sometime during the public hearings process.

Government files a condemnation action against you

You will receive a document that indicates it has been filed in court. It may be called a “notice of taking,” “statement of taking,” “statement of compensation,” or something else. However, if it indicates that it has been filed in court, this is probably the beginning of a lawsuit against you to acquire your property. It is possible but very difficult and inadvisable to defend against a lawsuit without an attorney. If you want to fight the condemnation, you should find an attorney at this point.