The Eminent Domain Process
KSPE 2015 Fall Seminar
Materials Prepared by:
Joe Erskine
Orrick & Erskine, L.L.P.
Corporate Woods, Building 27
10975 Grandview, Suite 175
Overland Park, Kansas
913-888-1777
[email protected]
1
Origin of Right and Power of Eminent Domain:
Governmental Police Power
Kansas Bill of Rights, Article 2: All political
power is inherent in the people, and all free
governments are founded on their authority,
and are instituted for their equal protection
and benefit.
Governmental police power is the inherent power of
government to take action which promotes the public health,
safety, welfare, or morals. Generally, reasonable regulation of
private property under the police power is not a taking and
therefore does not require payment of just compensation.
Small v. Kemp, 240 Kan. 113, 116-17, 727 P.2d 904, 909 (1986),
citing Kansas City Power & Light Co. v. Kansas Corp. Comm’n,
238 Kan. 842, 850, 715 P.2d 19, 26 (1986).
2
NATURE OF RIGHT AND POWER OF EMINENT DOMAIN
• “Eminent domain is the right and power of government or lawfully
designated authority to take private property for public use without the
owner's consent upon payment of just compensation; it is an inherent
power of the sovereign and comes into being with the establishment of
government and continues as long as the government endures, but its
exercise may be limited by the Constitution.” Nat’ l Compressed Steel
Corp. v. Unified Gov’t of Wyandotte County/Kansas City, 272 Kan. 1239,
1244, 38 P. 3d 723, 728 (2002).
• Kansas: The power of eminent domain is an inherent power which is
vested exclusively in the sovereign-the State of Kansas. Implicit in, and as
an integral part of that power is the authority in the sovereign, acting
through the legislature, to delegate the power of eminent domain. …The
legislature has the inherent power of eminent domain limited only by
constitutional restrictions. Such power may be delegated by the
legislature to any public authority to be exercised as directed. Concerned
Citizens United, Inc. v. Kansas Power and Light Co., 215 Kan. 218, 226, 523
P.2d 755 (1974).
3
DELEGATION OF THE RIGHT AND POWER OF EMINENT DOMAIN
The Legislature exercises power through conferring home
rule powers on counties and cities and through specific
statutory delegation of power to state agencies, cities,
other political subdivisions, utilities and others private
entities.
Home Rule: Home rule generally confers the inherent
powers of the state upon cities and counties:
Kansas Counties: KSA 19-101: That each organized county
within this state shall be a body corporate and politic, and
as such shall be empowered for the following
purposes…to purchase and hold real and personal estate
for the use of the county…
Kansas Cities: Kansas Constitution, Article 12, §5(b): Cities
are hereby empowered to determine their local affairs
and government….Cities shall exercise such determination
by ordinance passed by the governing body…..
4
DELEGATION OF THE RIGHT AND POWER OF EMINENT DOMAIN
Examples of Specific Statutory Delegation of Power of Eminent Domain in
Kansas:
KDOT: KSA 68-413(a) the secretary of transportation, in the name of the state,
may acquire title or easement by purchase, dedication or by the exercise of
the right of eminent domain to or upon any lands or interests or rights
therein…
Cities: KSA 26-201; KSA 12-16,103; KSA 13-1023 (first class cities)
Water Districts: KSA 19-3502, KSA 19-3509 and KSA 19-3511
Corporations and Partnerships:
1. KSA 26-101: Any corporation having the right of eminent domain and any
partnership holding a certificate of convenience issued by the state
corporation commission and having the right of eminent domain, shall
exercise such right in the manner set forth in K.S.A. 26-501 to 26-516,
inclusive.
2. KSA 17-618: Lands may be appropriated for the use of macadam-road,
plank-road, hospital corporation or association, telegraph and telephone
corporations, electric, hydraulic, irrigating, milling and manufacturing
corporations using power, oil companies, pipeline companies, and for the
piping of gas…
3. Many other specific delegation, particularly for entities subject to
jurisdiction of Kansas Corporation Commission.
5
Duty to Pay Just Compensation
Right of Just Compensation for Takings:
Federal:
UNITED STATES CONSTITUTION, Fifth Amendment Takings Clause:
“…nor shall private property be taken for public use without just
compensation”. Applicable to the States by the 14th Amendment.
Kansas:
Kansas Constitution, Article 12, §3: “No right of way shall be
appropriated to the use of any corporation , until full compensation
therefore be first made in money….”
KSA 26-513: (a) Necessity. Private property shall not be taken or
damaged for public use without just compensation.
6
Statutory Proceedings
Kansas: Eminent Domain Procedure Act, KSA 26-501, et seq.
Note re Kansas: Eminent domain actions are
special statutory proceedings and are not civil
actions covered by the code of civil procedure.
They are administrative, rather than judicial, in
nature. Kemp vs. Larson, 235 Kan. 676, 679
(1984), citing Sutton v. Frazier, 183 Kan. 33, 37
(1958).
7
KANSAS PRE-FILING CONSIDERATIONS AND REQUIREMENTS
Pre-filing Access to Property:
KSA 26-512: The prospective condemner or its agents may enter upon
the land and make examinations, surveys and maps thereof, and such
entry shall constitute no cause of action in favor of the owners of the
land, except for actual damages thereto.
KSA 74-7046: A licensed land surveyor and such surveyor's authorized
agents and employees may enter upon lands, waters and premises of a
party who has not requested the survey when it is necessary for the
purpose of making a survey. If the licensed surveyor has made a
reasonable attempt to notify the person in possession, such entry shall
not be deemed a trespass. Upon notice, such person in possession has
the right to modify the time and other provisions of the surveyor's access
upon notification to the surveyor, as long as such modifications do not
unreasonably restrict completion of the survey. Nothing herein shall
change the status of the licensed surveyor as an occupier of land.
8
FEDERAL PRE-FILING CONSIDERATIONS AND REQUIREMENTS
•
Federal Funding? If federal funds are utilized to pay all or part of a project’s costs, all
acquisition and relocation activity must comply with the federal Uniform Relocation
Assistance and Real Property Acquisition Policies , Act of 1970," 42 USC §4601, et seq. (the
“Uniform Act”) and its implementing regulations, 49 CFR Part 24.
42 USC §4604. “the head of a Federal agency may discharge any of his responsibilities under this
chapter by accepting a certification by a State agency that it will carry out such responsibility….”
Pre-filing Appraisal and Negotiations Requirements: 42 USC §4651: Agency shall
(1) make every reasonable effort to acquire expeditiously real property by
negotiation;
(2) Real property shall be appraised before the initiation of negotiations
[appraisal requirements intended to comply with Uniform Standards of
Professional Appraisal Practice (USPAP)];
(3) Before the initiation of negotiations for real property, establish an amount which [it]
believes to be just compensation and shall make a prompt offer to acquire the property for
the full amount so established. In no event shall such amount be less than the agency's
approved appraisal….
…
(7) In no event shall the head of a Federal agency either advance the time of condemnation,
or defer negotiations or condemnation and the deposit of funds in court for the use of the
owner, or take any other action coercive in nature, in order to compel an agreement on the
price to be paid for the property.
9
STATE/LOCAL FUNDING- PRE-FILING CONSIDERATIONS AND REQUIREMENTS
No Federal Funding?
Kansas: If federal funds are not being used to pay any part of a project’s
costs, no state statutes require other condemning authorities to obtain
appraisals or undertake good faith negotiations prior to filing an Eminent
Domain Petition.
KDOT Exception: KAR 36-16-1 provides 49 CFR Part 24 (the Federal Act)
“shall be applicable to all acquisitions of real property by the department
of transportation for the state highway system including those acquisitions
in which federal funds are not available for or used in payment of
acquisitions”; and KAR 36-16-21(a)(1) and (a)(2) provides KAR 36-16-1
applicable to all acquisitions of real property and displacement of persons
for any county, township or city highway, road and street for which federal
assistance is provided through KDOT or receiving KDOT non-federal funds.
10
GENERAL PRE-FILING CONSIDERATIONS AND REQUIREMENTS
Prior to filing, cities and counties must act to exercise right and power of
eminent domain by ordinance approved by governing bodies. Local
ordinances may also require prior approval of resolution.
Most other political subdivisions have charter provisions requiring
governing body action by resolution.
Private corporations must follow their own charters and by-laws, if any.
11
Eminent Domain Procedure Act (Kansas)
Eminent domain actions are special statutory proceedings and are not civil
actions covered by the code of civil procedure. They are administrative, rather
than judicial, in nature. Kemp vs. Larson, 235 Kan. 676, 679 (1984), citing
Sutton v. Frazier, 183 Kan. 33, 37 (1958).
KSA 26-501(b) The proceedings shall be brought by filing a verified petition in the district court of the
county in which the real estate is situated
26-502. Contents of petition. A petition shall include allegations of
(1) the authority for and the purpose of the taking;
(2) a description of each lot, parcel or tract of land and the nature of the interest to be taken;
(3) insofar as their interests are to be taken (a) the name of any owner and all lienholders of record, and
(b) the name of any party in possession. Such petition shall be verified by affidavit.
Upon the filing of such petition the court by order shall fix the time when the same will be taken up. No
defect in form which does not impair substantial rights of the parties shall invalidate any proceeding.
26-503. Eminent domain procedure; notice. The plaintiff shall publish notice of the proceeding at least
14 days in advance of the date fixed by the court for consideration of the petition and appointment of
appraisers, and shall at least 14 days before such date mail to each interested party a copy of such
publication notice and petition insofar as it relates to his interest.
12
Eminent Domain Procedure Act (Kansas)
KSA 26-504: If the judge to whom the proceeding has been assigned finds from the petition:
(1) The plaintiff has the power of eminent domain; and
(2) the taking is necessary to the lawful corporate purposes of the plaintiff
the judge shall entertain suggestions from any party in interest relating to the appointment of appraisers
and the judge shall enter an order appointing three disinterested residents of the county in which the
petition is filed, at least two of the three of whom shall have experience in the valuation of real estate, to
view and appraise the value of the lots and parcels of land found to be necessary, and to determine the
damages and compensation to the interested parties resulting from the taking.
“It must be recognized where an eminent domain proceeding is initiated by the filing of a petition I
n the district court, the determination that the taking is necessary to the lawful corporate
purposes of the plaintiff is made by the district court from the allegations of the petition itself.
….
Here the cities, acting pursuant to their authority under eminent domain, originally determined
the tracts of land necessary to be taken in connection with the airport facility. This was their
exclusive right, and in the exercise of their discretion it is not subject to judicial review in the
absence of fraud, bad faith or abuse of discretion”. Bowers v. City of Kansas City Concerned
Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218, (1974), citing, 202 Kan. 268 (1968).
The municipality has the exclusive right within its statutory authority in the first instance to
determine what lots, parcels or tracts of land are to be taken, after public hearing provided by
statute, and then file a petition to exercise the right of eminent domain. The presumption is that
public agencies and officers vested with discretionary administrative powers will perform their
duties in a proper manner and exercise their powers in good faith. Under our law this exercise of
discretion is not subject to judicial review unless there is proof of fraud, bad faith or abuse of
discretion. Even when fraud, bad faith or abuse of discretion is claimed, such questions can be
litigated only in a separate independent action such as the extraordinary remedy of injunction.
Kemp vs. Larson, 235 Kan. 676, 679-680 (1984).
13
Eminent Domain Procedure Act (Kansas)
KSA 26-505: ….The judge shall instruct the appraisers:
(1) That the appraisers are officers of the court and not representatives of the plaintiff or any other
party;
(2) that the appraisers are to receive instructions only from the judge;
(3) the nature of the appraisers' duties and authority:
(4) the basis, manner and measure of ascertaining the value of the land taken and damages
resulting from such taking;
(5) that, except for incidental contact for the purpose of verifying factual information relating to the
subject real estate or to discuss scheduling matters, appraisers shall refrain from any ex parte
meetings or discussions with representatives of the plaintiff or property owner without first
advising the adverse party and providing such party with the opportunity to be present;
(6) that all written material provided to an appraiser or appraisers by a party shall be provided
forthwith to the adverse party.
PIK 4th §131.17: Pattern Instructions to Appraisers
Note: New Supreme Court Case relevant to instructions to appraisers in August 2015.
KSA 26-506 The appraisers shall, after having been sworn, and instructed by the judge, make an
appraisal and assessment of damages, by actual view of the lands to be taken and of the tracts of
which the lands are a part, and by hearing of oral or written testimony from the plaintiff and each
interested party
14
Eminent Domain Procedure Act (Kansas)
KSA 26-505: Upon the completion of the appraisers' work the appraisers shall file the report in the office
of the clerk of the district court and shall notify the condemner of such filing. The condemner, within
seven days after receiving such notice, shall mail a written notice of the filing of such report to every
person who owns any interest in any of the property being taken, if the address of such person is known,
and shall file in the office of the clerk of the district court an affidavit showing proof of the mailing of such
notice. The fees and expenses of the appraisers shall be determined and assessed by the court against
the plaintiff.
KSA 26-507: payment of award and vesting of rights; removal of personal property; abandonment.
(a) If the plaintiff desires to continue with the proceeding as to particular tracts the plaintiff,
within 30 days from the time the appraisers' report is filed, shall pay to the clerk of the district court the
amount of the appraisers' award as to those particular tracts and court costs accrued to date, including
appraisers' fees. Such payment shall be without prejudice to plaintiff's right to appeal from the appraisers'
award. Except as provided further, upon such payment being made, the title, easement or interest
appropriated in the land condemned shall thereupon immediately vest in the plaintiff, and it shall be
entitled to the immediate possession of the land to the extent necessary for the purpose for which taken
and consistent with the title, easement or interest condemned. If such property contains a defendant's
personal property, a defendant shall have 14 days from the date such payment is made to the clerk of the
district court to remove such personal property from the premises. The plaintiff shall be entitled to all the
remedies provided by law for the securing of such possession.
(b) If the plaintiff does not make the payment prescribed in subsection (a) for any of the tracts
described in the petition, within 30 days, from the time the appraisers' report is filed, the condemnation is
abandoned as to those tracts, and judgment for costs, including the appraisers' fees together with
judgment in favor of the defendant for the reasonable expenses incurred in defense of the action, shall be
entered against the plaintiff.
15
Eminent Domain Procedure Act (Kansas)
Appeals from Court-Appointed Appraisers’ Award:
KSA 26-508: (a) If the plaintiff, or any defendant, is dissatisfied with the award of
the appraisers, such party, within 30 days after the filing of the appraisers' report,
may appeal from the award by filing a written notice of appeal with the clerk of
the district court. The appeal shall be deemed perfected upon the filing of the
notice of appeal. In the event any parties shall perfect an appeal, copies of such
notice of appeal shall be mailed to all parties affected by such appeal, within seven
days after the date of the perfection thereof. An appeal by the plaintiff or any
defendant shall bring the issue of damages to all interests in the tract before the
court for trial de novo. The appeal shall be docketed as a new civil action, the
docket fee of a new court action shall be collected and the appeal shall be tried as
any other civil action. The only issue to be determined therein shall be the
compensation required by K.S.A. 26-513, and amendments thereto.
KSA 26-509: Whenever the plaintiff condemner shall appeal the award of court
appointed appraisers, and the jury renders a verdict for the landowners in an
amount greater than said appraisers' award, the court may allow as court costs an
16
amount to be paid to the landowner's attorney as attorney fees.
Eminent Domain Procedure Act (Kansas)
Withdrawal of Award:
KSA 26-510: (b) The defendants may by order of the judge and without prejudice
to the defendants' right of appeal withdraw the amount paid to the clerk of the
court as the defendants' interests are determined by the appraisers' report.
Apportionment of Awards between Interested Parties:
KSA 26-517: In any action involving the condemnation of real property in which
there is a dispute among the parties in interest as to the division of the amount of
the appraisers' award or the amount of the final judgment, the district court shall,
upon motion by any such party in interest, determine the final distribution of the
amount of the appraisers' award or the amount of the final judgment.
Condemning Authority has no interest in the award or the apportionment
proceeding. City of Manhattan v. Kent, 618 P.2d 1180, 228 Kan. 513 (1980).
Note: Sedgwick County Local Rule 213 Exception
17
Unique Condemnation
Valuation Issues in Kansas
18
Landowner is entitled to compensation when the government
unreasonably blocks access to and from property
“Right of access is traditionally defined as an abutting landowner's
common-law right of access from the landowner's property to abutting public
roads; such a right is the right to reasonable, but not unlimited, access to
existing and adjacent public roads.” Frick v. City of Salina, 290 Kan. 869, 880,
235 P. 3d 1211, 1220 (2010) (emphasis added). City of Wichita v. McDonald’s
Corp., 266 Kan. 708, 718, 971 P. 2d 1189, 1197 (1999).
While, “Regulation of traffic flow, or restricted access, is an entirely
separate concept from right of access; an abutting owner has no right to the
continuation of a flow of traffic from nearby highways to the owner's
property.” City of Wichita v. McDonald’s Corp., 266 Kan. 708, 718, 971 P. 2d
1189, 1197 (1999) (emphasis added).
19
Access Issues Continued
A reasonable regulation which incidentally inconveniences a landowner’s
right to access a public road is typically not compensable in a condemnation
proceeding. See Eberth v. Carlson, 266 Kan. 726, 971 P. 2d 1182 (eliminating
the landowner’s highway cross-over and constructing a new cross-over on
nearby land was not unreasonable and did not constitute a taking); City of
Wichita v. McDonald’s Corp., 266 Kan. 708, 971 P. 2d 1189 (No right of access
had been taken from landowner as result of highway expansion project, where
none of landowner's four entrances and exits to its property had been
permanently closed, all entrances and exits were in same location as before
project, and landowner had access to same streets as before project).
A landowner is entitled to reasonable compensation “when the
government actually blocks or takes away existing access to and from
property” McDonalds, 266 Kan. at 718. See McCall Service Stations, Inc. v. City
of Overland Park, 215 Kan. 390, 524 P. 2d 1165 (1974) (Landowner was entitled
to compensation where government activity permanently closed off an
entrance to service station); Kohn Enterprises, Inc. v. City of Overland Park, 221
Kan 230, 559 P. 2d 771 (1977) (where jury awarded motel-restaurant owner
damages for loss of access to public road).
20
Landowners do not have “right to be seen” and “view”, in
KEDPA, means view from the property.
K.S.A. § 26-513(d)(5) states “View, ventilation and light, to the extent
that they were beneficial attributes to the use of which the remaining
property is devoted or to which it is reasonably adaptable” can be
considered in the award of compensation and damages in an eminent
domain proceeding.
In City of Wichita v. McDonald’s Corp., 266 Kan. 708, 971 P.2d 1189
(1999), the City of Wichita commenced a major improvement project to
West Kellogg Street (U.S. 54). Appellant landowners claimed that they were
owed compensation for an obstruction of view to their property under
K.S.A. § 26-513(d)(5).
However, the Kansas Supreme Court held that Appellants’ claims for
damages under a “right to be seen” had no legal support. See 4A Nichols on
Eminent Domain § 14A.03[4] (3d ed. rev. 1998) (“A right to be seen claim for
damages is generally denied”).
The Court then succinctly stated that “view in K.S.A. 26-513(d) means
view from the property.” Id. at 721.
21
Lost Profits Due to Inconvenience during Construction is not
compensable in Condemnation Proceeding
Business owners could not maintain action claiming damages for loss
of business due to temporary closing of street on theory of inverse
condemnation where access was restricted or blocked temporarily during
construction, no permanent change was effected by permanent closing of
existing entrances, by declaring thoroughfare limited access facility or by
raising of some curbs along property line, but rather, access loss was
temporary, during construction period and there was no claim that work
was illegal or that it was not pursued diligently and completed within
reasonable length of time.
Temporary closing of a street or highway for repair falls within police
power of state, not exercise of right of eminent domain; and so long as
repair is lawful, and is pursued with reasonable diligence, liability for
damages to those whose access is temporarily restricted does not attach.
22
The loss of business profits is not compensable in a
condemnation proceeding.
In Riddle v. State Highway Commission, 184 Kan. 603, 339 P.2d 301 (1959),
the Kansas Supreme Court stated the following “With respect to business
losses, the decided weight of judicial authority is that an abutting owner
may not recover damages based upon loss of business or the loss of
anticipated profits from the business in a condemnation proceeding
Nichols on Eminent Domain provides “Anticipated profits from a business
are generally not considered property within the meaning of the
constitutional provision forbidding the taking of property by eminent
domain. It is, therefore, well established that a business owner is not
entitled to recover anticipated business profits which are lost by the taking
of the land upon which the business is conducted. This rule also prevents
the recovery of profits lost during the time spent moving the business form
the condemned property to a new location.” 4 Nichols on Eminent Domain,
Chapter 13.13[6] (3rd Edition Revised).
23
Loss of trees and shrubbery may be taken into consideration for
damages so long as the loss of those trees and shrubbery
affects the fair market value of the land taken.
K.S.A. 26-513(d)(7) allows “Loss of trees and shrubbery to the extent that
they affect the value of the land taken, and to the extent that their loss
impairs the value of the land remaining.”
In Hoy v. Kansas Turnpike Authority, 184 Kan. 70, 334 P. 2d 315 (1959) the
Court heavily cited Case v. State Highway Commission, 156 Kan. 163, 131 P.2d
696 (1942) when reaching their conclusion. In Case the Highway Commission
acquired a right of way through the Case family farm. The land acquired ran
close to a farm house which was shaded and sheltered by trees on its north
side. The Court noted that “it was shown that it was a substantial damage to
the plaintiffs’ farm house by depriving it of its shade trees.” They then held
that “We think it would be difficult to find a more apt illustration to justify the
familiar rule of law in condemnation proceedings than the one presented
here,-that of allowing compensation for the land taken and damages to the
land not taken,-that is, to the farm house and its immediate grounds which
were so injuriously affected by being deprived of its shade trees.” Id. at 698
24
(emphasis added).