EMINENT DOMAIN STATE OF NORTH DAKOTA

Transcription

1 EMINENT DOMAIN STATE OF NORTH DAKOTA Who is Eligible to Condemn? Malcolm H. Brown Malcolm H. Brown, P.C. 209 East Broadway Avenue P.O. Box 2692 Bismarck, ND Telephone: Facsimile: mhblaw.btinet.net The State and its agencies ; , NDCC Municipalities ; , NDCC Counties ; ; ; , NDCC Utilities , NDCC Electric Cooperatives , NDCC School Districts , NDCC Irrigation Districts ; , NDCC Airport Authorities , NDCC Municipal Pipeline Authorities and Municipal Power Agencies ; , NDCC Water Authority , NDCC Railroads , NDCC Public Parks and Wild Life Conservation ; , NDCC Water Commission , NDCC Page 1 of 5

2 What Can Be Condemned? Private Property: Private real property or any interest therein, may be condemned for public use , NDCC Public Property: Property which may be taken pursuant to Chapter 32-15, NDCC, includes lands belonging to the state or to a county, city or park district not appropriated to some other public use. The property that has been appropriated to a public use may also be condemned if it is for a more necessary public use than that to which it is currently used (3), NDCC. Economic Development: In 2006, as a response to Kelo v. City of New London, 125 S. Ct (2005), and City of Jamestown v. Leevers Supermarkets, Inc., 552 N.W.2d 365 (N.D. 1996), by initiated measure the citizens of North Dakota adopted an amendment to the state constitution and to state law that defines a public use or a public purpose, not to include public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic help. Article I, Section 16, Declaration of Rights, and (3), NDCC. The Condemnation Proceedings: Power Generally: Private property shall not be taken or damaged through public use without just compensation having been first made to, or paid into court, for the owner.... Prior to Commencement of Condemnation: Most public projects do not require any kind of an informational public hearing or notice to all landowners except in the case of transmission lines and pipelines. Chapter 49-22, NDCC. This section of state law provides for public hearing and siting and routing procedures for high voltage electric transmission lines and hydrocarbon pipelines. The jurisdiction over the siting procedures is in the North Dakota Public Service Commission. Page 2 of 5

3 The condemnor has a duty to acquire property by negotiation and before initiating any negotiations for the purchase of the property, the condemnor must establish an amount which he believes to be just compensation which shall be not less than the condemnor s approved appraisal which must be provided to the landowner , NDCC. In addition, the condemnor, upon request, must provide to the property owner the names of at least ten neighboring property owners to whom offers are being made, a map showing all neighboring properties affected by the project, and upon request, even the names of other property owners within the county and adjacent counties , NDCC. These two sections were enacted by the North Dakota Legislature as a consequence of significant controversy over high voltage electric transmission lines being constructed across the state in the late 1970's and early 1980's. In the event the property cannot be settled by negotiation the eminent domain action can be commenced by the filing and service of a complaint , NDCC. Procedures after commencement of the action are governed by the North Dakota Rules of Civil Procedure , NDCC. The Proceeding: The eminent domain complaint must contain the name of the condemnor in charge of the public use for which the property is sought as the plaintiff and the names and owners of all the property sought to be condemned. A description of either the easement right-of-way or a description of the property to be taken must be set forth , NDCC. The proceeding is filed in the district court and the damages are determined by a jury or if a jury is waived by the court , NDCC. If a jury is waived the district court may appoint one or three masters to determine the issue of just compensation. Rule 53, North Dakota Rules of Civil Procedure. In assessing the damages a finding must be made regarding the value of the property sought to be condemned and all improvements and if the property sought to be condemned constitutes only a part of a larger parcel, the damages that may accrue to the portion not sought to be condemned by reason of its severance. City of Hazelton v. Daugherty, 375 N.W.2d 624 (N.D. 1979); , NDCC. For the purpose of assessing compensation and damages, the time of taking shall be determined by the court, but in takings by private entities it is typically the date of the trial. In case of takings by public entities where the proceeding is a quick take proceeding, the date of taking is the date of filing the notice of taking and the damage deposit with the clerk of the district court. Page 3 of 5

4 Trial of the proceedings before the court or the jury is usually a battle between expert appraisers. In North Dakota, the landowner is entitled to testify as to the value of the property sought to be taken without any expert qualifications. An appeal from the district court trial would be direct to the North Dakota Supreme Court. Appeal from Quick Take : In cases where a public entity (i.e. the state or any political subdivision, city, county, etc.) has used its quick take authority to acquire a right of way by depositing the amount of compensation with the district court, the landowner has 30 days in which to file a notice of appeal to the district court. After the appeal, the matter is tried under the general eminent domain procedures found in Chapter 32-15, NDCC, and as described above. Appeal from District Court Award: An appeal from a district court award would be under the North Dakota Rules of Civil Procedure within 60 days after entry of the final judgment of condemnation. Procedure to Challenge Condemnation: Any landowner can challenge the right of the plaintiff to take his property. Typically that defense would be that either the plaintiff does not have the constitutional or statutory authority to exercise the power of eminent domain or that the proposed purpose is not a public purpose. Square Butte Electric Cooperative v. Hilton, 244 N.W.2d 519 (N.D. 1976); United Power Association v. Moxness, 267 N.W.2d 814 (N.D. 1978). Inverse Condemnation: Inverse condemnation is, of course, compensible in North Dakota under Article I, Section 16 of the State Constitution. Kraft v. Malone, 313 N.W.2d 758 (N.D. 1981); Arneson v. City of Fargo, 331 N.W.2d 30 (N.D. 1983); Rippley v. City of Lincoln, 330 N.W.2d 505 (N.D. 1983). The property owner typically would file suit in district court alleging the taking and the procedure set forth in Chapter 32-15, NDCC, would be applicable to the proceeding. However, the landowner would have the burden of proof on the issue of the taking. Page 4 of 5

5 Just Compensation Valuation Issues: Section , NDCC, sets forth how damages are determined by jury or the court. Initially, the value of the property sought to be condemned and all improvements thereon must be determined. Secondly, if the property sought to be condemned constitutes only part of a larger parcel the damages, if any, which were approved not sought to be condemned by reason of severance, and if the property sought to be taken is by the state or a public corporation, how much the portion not sought to be condemned will be benefitted, if at all, by the construction of the improvement proposed by the plaintiff. If the benefit is equal to the damages previously assessed, the owner of the parcel is allowed no compensation, but if the benefit is less then the overage would be the damages to the property owner , NDCC. Typically, appraisers will use the three most common approaches to valuation of a property sought to be taken, the income approach, the cost approach and a comparable sales approach. Depending on the property sought to be condemned any one of the three might be the best tool to advise the jury on the damages sought by the landowner. As previously mentioned, the owner does not have to have any expert qualification to testify as to the value of the property or to the damages that he has incurred. Neither the state nor any political subdivision can obtain any rights or interest in and to the oil, gas underlying lands subject to taking for public use , NDCC. Abandonment of Condemnation: Whenever the state or any municipality, political subdivision, any public utility or other entity that has been granted the power of eminent domain shall commence eminent domain proceedings or thereafter withdraws or discontinues they are liable to the owner for all court costs, expenses and attorney s fees due to the abandonment of the proceeding , NDCC. Attorney s Fees and Costs: A district court, in its discretion, may award reasonable, actual or statutory costs or both for all judicial proceedings , NDCC. City of Devils Lake v. Davis, 480 N.W.2d 720 (N.D. 1992). In determining reasonable attorney s fees, the court must determine the number of hours the attorney has expended or determine specific hourly rates based upon the attorney s experience and reputation, and evaluate the complexity and his knowledge of the litigation. City of Bismarck v. Thom, 261 N.W.2d 640 (N.D. 1977); Cassady v. Souris River Telephone Cooperative, 520 N.W.2d 803 (N.D. 1994). Page 5 of 5