Evaluation Of State Condemnation Process & Eminent Domain Problem

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

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