Eminent Domain Law and Practice in Minnesota

Similar documents
Senate Eminent Domain Bill SF 2750 As passed by the Senate. House Eminent Domain Bill HF 2846/SF 2750* As passed by the House.

6. The entity proposing to take your property must make a good faith offer to buy the property before it files a lawsuit to condemn the property.

ACQUISITION. Real Property Acquisition For Kansas Highways, Roads, Streets and Bridges

NEVADA EMINENT DOMAIN LAW AND PROCEDURES

Acquiring Real Property for Federal and Federal-Aid Programs and Projects

Park Acquisition Opportunity Fund Grant Rules Adopted by the Metropolitan Council on May 28, 2014 as an Amendment to 2030 Regional Parks Policy Plan

EMINENT DOMAIN Educational Series

CONDEMNATION 101: What Every Real Estate Attorney Should Know

A.R.S. T. 12, Ch. 8, Art. 2.1, Refs & Annos Page 1. Chapter 8. Special Actions and Proceedings Relating to Property

EMINENT DOMAIN OVERVIEW

Principles of Compensation For the Taking of Gasoline Petroleum Station Operations. This article will discuss basic issues of the valuation for

IT COULD HAPPEN TO YOU

Quick Takes, Signage Rights, and Awards

[PROPOSED REVISED] CHAPTER 16 LOS ANGELES COUNTY COURT RULES

JAMES M. RAMSEY, JR., ET AL. OPINION BY v. Record No JUSTICE CLEO E. POWELL APRIL 16, 2015 COMMISSIONER OF HIGHWAYS

BLUEPRINT REAL ESTATE POLICY

AGREEMENT TO ACQUIRE LANDS BETWEEN THE DEPARTMENT OF THE ARMY ST. PAUL DISTRICT, CORPS OF ENGINEERS AND. THE CITY OF City, State

PILT Report to the Legislature Minn. Laws 1st Special Session, ch. 2, art. 4, sec. 35

Displacement and Relocation A. INTRODUCTION B. METHODOLOGY

REAL ESTATE OFFICER, SENIOR REAL ESTATE OFFICER, 1961

PROPERTY APPRAISAL PROCEDURES. Budget, Finance & Audit Committee March 3, 2014

The Law on Valuing Mineral Interests in the Context of Condemnation Cases

Minnesota Pollution Control Agency Voluntary Investigation and Cleanup

Acquisition IOWA 2015 CDBG MANAGEMENT GUIDE APPENDIX 2 PAGE: 79

PURCHASE AGREEMENT. 4. CONTINGENCIES. This Purchase Agreement is contingent upon the satisfaction of the following conditions:

IC Chapter 7. Real Property Transactions

LAND ACQUISITION FOR PUBLIC AIRPORTS

NOTICE OF INTENT TO ACQUIRE AND GOOD FAITH OFFER

CITY OF MIAMI CITY ATTORNEY'S OFFICE MEMORANDUM

IC Chapter 17. Relocation Assistance

Putting it all together. Presented by: RIGHT OF WAY SERVICES

HOUSE AMENDMENT Bill No. CS/HB 411

ROUND UP THE USUAL SUSPECTS Captain Louis Renault, Casablanca, Dir. Wallis, MGM, 1942

LEGAL PITFALLS OF RIGHT OF WAY : DELAYS IN ACQUISITION. Darby F. Venza, ROW Attorney

Market Value What Does It Really Mean?

OFFICE OF REAL ESTATE

LAnd Acquisition for PubLic AiRPoRts

Treatment of Property Owners in Redwood City Redevelopment Project

CONSERVATION EASEMENTS and CONDEMNATION - WHICH ONE WINS? By Christian F. Torgrimson, Esq. luhpursleyfriese PTORGRIMSON

INFORMATIONAL STATEMENT RELOCATION ASSISTANCE FOR DISPLACED BUSINESSES

New York s Land Bank Act

BUSINESS PROPERTY THE REAL VALUE OF. New Minnesota law gives appraisers a way to establish minimum compensation in eminent domain cases

2009 QBS Request for Statement of Interest (SOI) On Call Appraisal Services

Impact Fees. Section 1 Purpose and Intent.

Precondemnation Procedures: Acquiring Right of Way in a New World October 9, Presented by David Graeler and Brad Kuhn

Guidelines to Allocate Funds for Metropolitan Highway Rights of Way

CENTRAL FLORIDA EXPRESSWAY AUTHORITY EMINENT DOMAIN WORKSHOP

DEPARTMENT OF THE ARMY U.S. Army Corps of Engineers Washington, DC Regulation No May 2015

6 Model Leasehold Mortgagee Protections (Maximum) TABLE OF CONTENTS I. DEFINITIONS LOSSES AND LOSS PROCEEDS A. Prompt Notice B. Casualty C.

WISCONSIN RELOCATION RIGHTS BUSINESS, FARM WISCONSIN AND NONPROFIT ORGANIZATIONS

A Bill Regular Session, 2015 SENATE BILL 757

Litigating A Public Infrastructure Eminent Domain Case

LIST OF CHAPTERS. Chapter 2 MECHANICS OF A QUIET TITLE ACTION QUIET TITLE ACTIONS AGAINST THE FEDERAL GOVERNMENT

IN THE SUPREME COURT OF TEXAS

Understanding Texas TIRZ Statute Chapter 311 Texas Tax Code

Port Authority of the City of Saint Paul Property Assessed Clean Energy Program (PACE OF MN) JOINT POWERS AGREEMENT

Pipelines & Eminent Domain THE PROPOSED KINDER MORGAN PERMIAN HIGHWAY PIPELINE OCTOBER 29, 2018 JIM BRADBURY JAMES D.

IC Chapter 4. City War Memorials

RESOLUTION NUMBER 2017-

Texas Land Trust Conference March 6, 2015

STATE OF MINNESOTA OFFICE OF THE STATE AUDITOR

Request for Proposals

As seen in the September issue of Michigan Lawyers Weekly THE DIMINUTION OF THE GOOD FAITH OFFER PROTECTIONS IN EMINENT DOMAIN PROCEEDINGS

(c) County board of commissioners means 1 of the following, as applicable: (ii) In all other counties, 1 of the following:

Landowner's rights. When the Crown requires your land for a public work. April 2010

EMINENT DOMAIN LANDOWNER GUIDE What Every Wisconsin Landowner Should Know

I. BACKGROUND. As one of the most rapidly developing states in the country, North Carolina is losing

MIAMI-DADE EXPRESSWAY AUTHORITY PROPERTY ACQUISITION POLICY

MN STATUTES ANNOTATED 145A.04 POWERS AND DUTIES OF BOARD OF HEALTH. Subdivision 1.Jurisdiction; enforcement. A county or multicounty board of health

Neighborhood Renewal Program Policies and Procedures

SECTION I PRE-ACQUISITION PLANNING, OFFERS, NEGOTIATIONS, AND RESOLUTIONS OF NECESSITY

WISCONSIN CASES THAT EVERY EMINENT DOMAIN ATTORNEY SHOULD KNOW AND UNDERSTAND I. DON T NECESSARILY SETTLE FOR THE HAND YOU ARE DEALT.

CONSERVATION AND PRESERVATION EASEMENTS ACT Act of Jun. 22, 2001, P.L. 390, No. 29 AN ACT Providing for the creation, conveyance, acceptance,

Perry County. Appeal Procedures, Rules, and Regulations v.1.1

No July 27, P.2d 939

A Business Owner s Survival Guide to Eminent Domain. 10 Things You Must Know When the Government Wants to Condemn Property

COMMERICAL PURCHASE AGREEMENT

RULES AND REGULATIONS FOR ADMINISTRATION OF AREA DRAINAGE PLANS

Landlord Tenant Law Module #2

Department of Legislative Services

Tioga County Board of Assessment Appeals Tioga County Courthouse 118 Main Street Wellsboro, PA 16901

"What is the amount of just compensation the [plaintiff(s)] [defendant(s)] [is] [are] entitled to recover from the [plaintiff]

LAKE POWELL PIPELINE DEVELOPMENT ACT Passed by 2006 Utah State Legislature

METROPOLITAN COUNCIL 390 North Robert Street, St. Paul, MN Phone (651) TDD (651)

IC Application of chapter Sec. 1. This chapter applies to each unit having a commission. As added by P.L (ss), SEC.18.

FORECLOSURE RECORD Form (2011) This Foreclosure Record consists of the following attached documents: (check appropriate boxes)

VIRGINIA ASSOCIATION OF REALTORS Commercial Purchase Agreement

State Revolving Fund Loan Programs Guidance for Project Land Acquisition For SRF Financed Projects

LOCAL GOVERNMENT CODE CHAPTER 372. IMPROVEMENT DISTRICTS IN MUNICIPALITIES AND COUNTIES SUBCHAPTER A. PUBLIC IMPROVEMENT DISTRICTS

METROPOLITAN TRANSPORTATION AUTHORITY ALL-AGENCY GUIDELINES FOR THE DISPOSAL OF PERSONAL PROPERTY

WISCONSIN LEGISLATIVE COUNCIL INFORMATION MEMORANDUM

LCRA BOARD POLICY 401 LAND RESOURCES. Sept. 21, 2016

Table of Contents SECTION 1. Overview... ix. Schedule...xiii. Part 1. Origins of Eminent Domain

Meet Definition of. Be investment property. & Follow FV Model. Earn Rentals

TABLE OF CONTENTS General Legal Authority for Certification of Right of Way Control 24-2

A Model Ordinance Establishing a Local Government Tax Deferral Program for Recreational and Commercial Working Waterfront Properties

Hudson Yards Redevelopment. Discussion of Property Acquisition and Relocation

Florida Attorney General Advisory Legal Opinion

Table of Contents SECTION 1. Overview... ix. Schedule...xiii. Part 1. Origins of Eminent Domain

THE TYPICAL ISSUES IN CONDEMNATION

Transcription:

Eminent Domain Law and Practice in Minnesota Gary A. Van Cleve Larkin Hoffman Law Firm gvancleve@larkinhoffman.com Igor Lenzner Rinke Noonan Law Firm ilenzner@rinkenoonan.com

What is Eminent Domain? Right of the state to take private property for public use or purposes Inherent right of the sovereignty U.S. and Minnesota Constitutions require just compensation be paid for the taking Minnesota Constitution broader than Federal Minn. Stat. Ch. 117: Eminent domain law

Who Has Authority to Condemn? State and certain delegated agencies and political subdivisions: MnDOT Cities and Counties Housing and Redevelopment Authorities Port Authorities Metropolitan Council Watershed Districts

Who Has Authority to Condemn? Certain Non-Governmental Entities Utility companies Railroads

What is Public Use or Public Purpose? Eminent domain may only be used for a public use or public purpose. Minn. Stat. 117.012, subd. 2. Public use or public purpose means exclusively: Possession, occupation, ownership, and enjoyment of the land by general public/agencies Creation or functioning of public service corp.

What is Public Use or Public Purpose? Mitigation of blighted area, remediation of environmentally-contaminated area, reduction of abandoned property, or removal of a public nuisance EXPRESS EXCLUSION: The public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health, do not by themselves constitute a public use or public purpose. (Anti-Kelo exception)

Pre-Condemnation Procedures Identify Project and Property Needed Ensure Project Meets New Test for Public Improvement Studies, meetings, designs Identification of land needed and determination of value

Pre-Condemnation Appraisal and Negotiation Requirements (Minn. Stat. 117.036) Duties of Acquiring Authority: Must obtain: at least one appraisal Must confer: with property owner if reasonably possible Must provide: owner with copy of appraisal Must inform: owner of right to obtain appraisal Minn. Stat. 117.036, subd. 2(a).

Pre-Condemnation Appraisal and Negotiation Requirements (Minn. Stat. 117.036) Property owner s right to reimbursement for appraisal Entitled to reasonable costs of appraisal Maximum of $1,500 for (i) one- or two-family homes and (ii) minimum damage acquisitions Maximum of $5,000 for other property types Reimbursement within 30 days of receiving owner s appraisal and reimbursement info Minn. Stat. 117.036, subds. 2(b) and 2(c).

Pre-Condemnation Appraisal and Negotiation Requirements (Minn. Stat. 117.036) Negotiation requirement Authority must make a good faith attempt to acquire property by direct purchase Authority must consider appraisals, including any from the property owner if available If both full and partial taking being considered, authority must make good faith attempt to negotiate over both types of takings. Minn. Stat. 117.036, subd. 3.

The Condemnation Action The Petition. Must describe the land and its owners Filed in district court of county where land situated Must state public purpose for taking Pray for appointment of commissioners to appraise damages for taking. Minn. Stat. 117.055, subd. 1.

The Condemnation Action Notice of the petition Served in same manner as summons in civil action Must be served at least 20 days before hearing Must state any challenge to public use or purpose must be made at hearing Court order approving public purpose is final unless appealed within 60 days of order s service Minn. Stat. 117.055, subd. 2.

The Quick Take Statute Traditional condemnation No transfer of title to condemning authority until completion of the action and final payment of award Minn. Stat. 117.205. Minnesota allows a quick take procedure under which title may be taken at the beginning of the process. Minn. Stat. 117.042.

The Quick Take Statute (cont.) Quick take condemnation Entitles condemning authority to take title to and possession of the land before value determined Authority must give minimum 90 days notice by certified mail to property owners of quick take Authority must pay owner or deposit money into court representing the approved appraised value Authority at the petition hearing must move the court to order transfer of title and possession

The Quick Take Statute (cont.) Condemning authority s approved appraisal value is not final Owner still has right to seek additional damages through the condemnation proceedings Tip: Attorney for fee owner should try to obtain consent of mortgage companies, tenants and other owners to obtain direct payment in lieu of the court deposit for the quick take Owner has right to move court for release of deposit.

The Eminent Domain Proceedings Two-stage (potentially) eminent domain proceedings in Minnesota Commissioners hearing Minn. Stat. 117.075, 117.085, 117.105, 117.115. District court jury trial de novo Minn. Stat. 117.145, 117.155, 117.165, 117.175, 117.185.

The Commissioners Hearing District court appoints three disinterested commissioners and at least two alternates To ascertain and report the amount of damages Conflict of interest inquiry required Attorneys for property owners allowed input Real estate-related qualifications required Oath administered by court

The Commissioners Hearing How commissioners hearings differ from court proceedings No discovery except appraisal exchanges Parties must produce appraisals to each other at least five days before hearing. Minn. Stat. 117.036, subd. 4. Rules of evidence? Not enforced Commissioners do not make rulings of law

The Commissioners Hearing Duty of the Commissioners: Commissioners must view the property Owner typically testifies along with appraisers; other witnesses may include engineers, brokers, planning consultants make a separate assessment and award of the damages which in their judgment will result to each of the owners of the land by reason of such taking and report the same to the court Minn. Stat. 117.085

The Commissioners Hearing File their damages report with district court by court-established deadline (routinely extended) Minn. Stat. 117.105 Condemning authority must give notice of report filing to all interested parties Minn. Stat. 117.115

District Court Proceedings Any party may appeal commissioners award to district court within 40 days of filing of commissioners report Any other party may cross-appeal within 50 days of filing of commissioners report Minn. Stat. 117.145

District Court Proceedings Proper service of notice of appeal critical to perfecting the appeal. File notice of appeal with court administrator Serve notice by U.S. mail on all parties shown on condemning authority s affidavit of mailing Minn. Stat. 117.145

District Court Proceedings Appealing parties have right to a jury trial Minn. Stat. 117.165 Trial is de novo Commissioners may be called as witnesses Owner has burden to establish damages Minn. Stat. 117.175, subd. 1

District Court Proceedings Trial proceeds as any other civil trial. Appeal may be taken from the final judgment to Minnesota Court of Appeals as in any other civil case

Special Issues--Attorneys Fees New attorneys fees provisions in 2006 amendments Award of attorneys fees is based on percentage that final damages award exceeds condemning authority s last written offer Final award more than 40% greater than last written offer: court shall award owner reasonable fees and costs

Special Issues--Attorneys Fees Final award at least 20% greater than last written offer, but less than 40% greater: court may award reasonable attorneys fees and costs No attorneys fees if final judgment or award is less than $25,000 Attorneys fees also awardable for unlawful takings or takings not for a public use: court shall award reasonable attorneys fees and costs Minn. Stat. 117.031(a) and (b)

Special Issues--Going Concern Going concern refers to the going value or business value attributable to the location of an established business Before 2006 amendments, very difficult to recover going concern value in condemnation In 2006, legislature defined going concern and circumstances where recoverable

Special Issues--Going Concern [B]enefits that accrue to a business or trade as a result of its location, reputation for dependability, skill or quality, customer base, good will, or any other circumstances resulting in the probable retention of old or acquisition of new patronage. Minn. Stat. 117.186, subd. 1

Special Issues--Going Concern General rule under new statute: If a business or trade is destroyed by a taking, the owner shall be compensated for loss of going concern. Minn. Stat. 117.186, subd. 2

Special Issues--Going Concern Avoiding liability for loss of going concern: If authority can show that loss not caused by the taking If authority can show loss can reasonably be prevented by (a) relocating the business in same/similar and reasonably suitable location, or (b) by taking steps, adopting procedures that reasonably prudent person would to preserve, or To award would be duplicative compensation

Special Issues--Inverse Condemnation Cause of action against the government to recover value property that has been taken in fact without exercise of eminent domain. If property owner successful, entitled to reasonable attorneys, appraiser, engineering fees and costs. Minn. Stat. 117.045.

Special Issues--Relocation Federal Uniform Relocation Assistance and Real Property Acquisition Act of 1970. 42 U.S.C. 4601-4655. Incorporated by reference into Minnesota law by Minn. Stat. 117.52, subd. 1. Moving expenses, referred to as relocation claims

Special Issues--Relocation Generally must submit relocation claims to condemning authority within 180 days after displaced person required to vacate or the final date of compensation for the taking. Claim must be supported by documentation for expenses incurred. Condemning authority must provide reasonable assistance in filing claims

Special Issues--Relocation Types of payments allowed: Moving expenses (49 CFR 24.31) Non-residential moves (49 CFR 24.303) Reestablishment expenses (49 CFR 24.304) Replacement housing (49 CFR 24.401)

What is Just Compensation? Measured by the fair market value of the property taken FMV: the amount a purchaser who is willing to buy the property would pay to an owner who is willing to sell it, taking into consideration the highest and best use of the property

What is Just Compensation? Determining just compensation--three valuation methods Market approach: compare to similar properties and adjust for differences Income approach: value of an income-producing property by converting cash flows and reversions into property value (capitalization of income) Cost approach: cost to construct less depreciation

Evidence of Market Value The Project Rule: enhancement or diminution in value caused by the governmental improvement not admissible State v. Anderson, 197 N.W.2d 237 (Minn. 1972) (enhancements) Regents v. Hibbing, 225 N.W.2d 810 (1975)

Evidence of Market Value Highest and Best Use: law requires that property be valued at its highest and best use. Four criteria are: legally permissible, physically possible, financially feasible and maximally productive Dictionary of Real Estate Appraisal, 3rd ed. (Appraisal Institute) at 171.

Evidence of Market Value Principles applied by Minnesota courts in determining highest and best use: Assemblage: if H&BU achieved through assembling parcel with others, evidence of likelihood of assembly will be heard. Regents. Zoning Change: if H&BU achieved through zoning change, probability of such change will be heard. State v. Briggs, 488 N.W.2d 811 (Minn. App. 1992).

Evidence of Market Value--Partial Takings Severance Damages. Where the entire parcel is not taken, the owner is entitled to compensation for the diminution in value of the remainder of the property after the taking, i.e., severance damages, a form of consequential damages. City of Minneapolis v. Yale, 268 N.W.2d 170 (Minn. 1971).

Evidence of Market Value--Partial Takings, Severance Principles Larger parcel rule: parcels of land may be considered together for purposes of measuring damages to remaining property after taking if the parcels are sufficiently connected. Yale. Mitigation/cost to cure: Owner has duty to mitigate damages. State v. Pahl, 95 N.W.2d 85 (Minn. 1959). Severance damages may, as a result, be limited to owner s cost to cure rather than diminution in value.

Evidence of Market Value--Partial Takings, Severance Principles Loss of access: Arises to level of a taking only when owner is left without reasonably convenient and suitable access in at least one direction. Hendrickson v. State, 127 N.W.2d 165 (Minn. 1964). New driveway access rule: 2006 amendments added provision allowing business owner compensation if loss of 51% or greater of driveway access and 51% decrease in revenue. Minn. Stat. 117.186, subd. 4.

Evidence of Market Value--Partial Takings, Severance Principles Loss of visibility/construction interference: Both are factors in measuring diminution in value of remainder after taking. Going concern damages. See 2006 amendments, Minn. Stat. 117.186 and 117.036.

Questions? END