Eminent Domain

Discussion in 'Homesteading Questions' started by RenieB, Dec 10, 2003.

  1. RenieB

    RenieB Well-Known Member

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    We live on a heavily traveled road that goes up to Canada and the state has been doing a lot of work on the road South of us. Well, we knew something was coming up on our stretch of road as surveyors have done all of the properties along the road. Last night we were invited to a meeting with the Road Department and they are going to be working on the road and they showed us the tenative plans and we had a chance to ask questions and were given booklets about how they decide reimbursement to property owners and our rights. Bottom line they will take the needed land no matter what. Most of my property is frontage on the road and I will be losing some land but not an awful lot. Have any of you gone through something like this? Just wondering if we just accept the offer they give or what to do. The land they will be taking the most of is unused woods along the road on both sides of our house. They won't be starting anything for a couple of years anyway but just wondering about any experiences others have had. We have by the road two huge bull pines that we would love to lose. Interestingly we had allowed a small store/restaurant, down the road from us put a sign on one of the trees and the state told us we couldn't because the tree was on state property. Well, we asked them to remove the huge leaning trees and were then told it was our responsibility to remove the trees. We got nowhere with the state on that one. It really looks like these two trees will have to be removed when this widening of the road is done and I am ok with that.

    RenieB
     
  2. bare

    bare Head Muderator

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    No, you don't have to accept their offer and you probably shouldn't. I've dealt with similar things probably 20 times in the past on various properties...right of way, and easements. They are required to pay you for the value of the land. However, it has always been my experience that they have someone on staff that does the assessment. I have never had an independent assessment...ever!

    So, that leaves it up to you. If you have an attorney, ask them for a referal. If not, try and find an uninterested local real-estate person that will give you a referal for an assessor.

    If you really stand to lose little, these are things you can do yourself to mitigate your loss. Require that that as well as the financial recompensation, that the trees you don't like are fallen and hauled further onto your property. Tell them you want the trees limbed and the brush piled and burned and the trunks cut up into whatever firewood length you can use or sell.

    Other concessions I've gotten over the years... I've had 100's of yards of torn up asphalt dumped on my property that I was able to sell afterwards. All you have to do is find someone with a dirt road that will pay you to haul it off and lay it on their road. A crawler spreads and smashes it making it almost like a new paved highway.

    Look around your place for projects needing done with the thought in mind that the company doing the work will have all this high-dollar equipment right outside your door. Need a new septic tank hole dug? New outhouse hole? Road graded? Gravel hauled? New culverts placed?

    One place I had needed a bridge across a creek. The power company wanting an easement placed a 50' railroad flatbed across the creek that is still in use today, 30 years later.

    It's been my experience that most folks just take the first offer and I'm sure the contractors hate me but it's a whole lot cheaper for them to placate you and make you happy than it is to alter their plans or take you to court.

    If you decide to do the negotiating yourself it is vital that you document any and all agreements in writing! Anymore, I also carry a small tape recorder whenever I am talking to anyone regarding agreements. Don't be afraid to lay it right out in plaid sight.
     

  3. Hoop

    Hoop Well-Known Member

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    Northern Wisconsin
    If the highway is coming through.....about the only thing you can negotiate is the price.
    Here is how it generally works. The surveyors have deemed they need so much property from you. Lets say its 1/10 of an acre. Then the powers that be will make a lowball offer to you based on the property values in the area. If an acre sells for $5000, you can expect $500 for your 1/10 of an acre.

    You'll have to negotiate with these people and come up with some proof of land being worth more than this in your area.

    Personally, I happen to think a visit to a lawyer is akin to buying $1500 worth of lottery tickets......they might do something for you......but odds are extremely great you'll get nothing out of it!
     
  4. JWH123

    JWH123 Well-Known Member

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    USA
    I'm a highway engineer, so you can blame me. However, I've only been doing this for 3 years and haven't been very involved in Right of Way issues.

    I don't know what state you're in, I'm sure your state has a slightly different process than Pennsylvania.

    What everyone else is saying is correct. You don't want to take the first offer the DOT gives you. In PA, you can get about two or three counter-bids, and then eventually they will get tired of dealing with you and start the eminent domain condemnation process. That is where things start getting bad for you. So don't resist too hard!

    It might be difficult to work with the contractor to 'get other projects around the house' done, but you might talk with the equipment operator and see if a few cases of beer or a hundred bucks might help the process. I'd still doubt it though. The contractor or a demoliton/clearing subcontractor doesn't want to get caught with their men and equipment digging up your septic field when the state inspector comes by! Don't forget these men probably get paid upwards of $30-35 an hour, so a pan of brownies probably won't cut it!

    Do you know where your property corners are? Are there markers at each one? If a crew of surveyors has already come through with their equipment, they may have either located the existing markers or set new ones. Do you have a plat of your property? That is a drawing with surveyor's notes on it, which should show where your property ends, and where the state's right of way begins. In rural areas, this may be referenced from the centerline of the road, which will make things easy for you, you just get out there with a tape measure and firugre out how far the right of way extends.

    Do you have any easements along the edge of your property for utilities or any sort of access? Most likely, if you've got a row of electric poles on your side of the road, those poles will need to be moved further onto 'your' property too. (Did you really think it was yours?) Same with water, sewer, gas lines too.

    In addition to whatever width the state wants to take for the road, there may be issues with stormwater. You may really hit the jackpot :rolleyes:, and get a stormwater management pond in your front yard! Some states use 'dry' ponds, they stay dry and ugly until you get a storm. Some states use 'wet' ponds, they stay wet (or at least squishy) all the time. Either way, less property for you.

    As for your pine trees, you first need to determine if they're on your property or on the state's. If they're the state's, you're out of luck. If they're on your side of the line, you can take pictures and plead your case with the state's R/W guy. If they're unique, particularly decorative, extra large, or are the only windbreak on your property, you may be able to get a little more money for replacement of the trees.

    You can also see if any of the right of way they want to buy from you could instead be either a temporary or permanent easement. Temporary construction easements will revert back to you once the job is completed, a permanent easement will still be your property, but you will be restricted in what you can do with it. Things like an 'occasional flowage easement' for storm flooding in low-lying areas are places you wouldn't build on anyhow, but you could still use it to graze animals on the other 363 days out of the year. Keep in mind whether you would still be paying taxes on these easements, and how restrictive the easement is, before agreeing to this.

    Once the project starts, you will want to talk with either the general contractor, or the demoliton/clearing contractor (the name on the bulldozers). Normally any material that they're getting paid to remove, becomes the contractor's property. Sometimes the contractor has a way to get money for the material, sometimes they would need to pay to get rid of it. Ask them if you decide there's any material you would like to have for yourself - fill dirt, blasted waste rock, broken up concrete or asphalt, used culverts (if they don't destroy it when they remove it), trees, etc. I wouldn't bother talking with the state about any of this type of stuff, they won't be able to write up details like this in their plans and specifications package anyhow. Just wait till the contractor shows up on site, and deal directly with him. They have a lot more flexibility once they're on site.


    Good luck!
    John
     
  5. JWH123

    JWH123 Well-Known Member

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    Feb 3, 2003
    Location:
    USA
    A few more rambling thoughts I had-

    Yes, as you said in your first message, the bottom line is that they WILL get the needed land, one way or the other. However, if you can prove that someone else's land is 'better' to put the road on, you can push the problem onto someone else. Have any neighbors you don't like? :p

    If you're only having a sliver take of your property, you will not have as much bargaining power with the state as if your whole property was being taken. I'd rather have the roadway come through my living room, as opposed to the edge of my property.

    What are you using your property for, and what is it zoned as?

    If your property is zoned for agriculture, and/or if it's being used to raise something for profit, you may have other avenues of protest.

    Relevant laws to look into:
    National Environmental Policy Act of 1969 - this is relevant to ANY project that affects the environment, you will have to narrow down for info on highway building. If you really want to put up a fight and can prove that your property is more environmentally valuable than others', you can look into this. http://www4.law.cornell.edu/uscode/42/ch55.html
    42 U.S.C. s/s 4321 et seq. (1969)
    The National Environmental Policy Act was one of the first laws ever written that establishes the broad national framework for protecting our environment. NEPA's basic policy is to assure that all branches of government give proper consideration to the environment prior to undertaking any major federal action that significantly affects the environment.

    NEPA requirements are invoked when airports, buildings, military complexes, highways, parkland purchases, and other federal activities are proposed. Environmental Assessments (EAs) and Environmental Impact Statements (EISs), which are assessments of the likelihood of impacts from alternative courses of action, are required from all Federal agencies and are the most visible NEPA requirements. ​

    If you have a possibly historic property, you can look at 'section 4f'. - http://www.fhwa.dot.gov/environment/4_f.htm This applies to all historic sites, and publicly owned parks and refuges.

    If you're agricultural, you can check with your county extension agent about 'agricultural security' areas, which I believe means you can never use your land for anything but ag production. It looks like this is a Pennsylvania thing, but there may be a program like it in your state. Similarly, if you're an ag producer, Pennsylvania has an 'Agricultural Land Condemnation Approval Board', which arbitrates between the state/ DOT and a landowner when ag lands are condemned. ALCAB, however, does NOT have jurisdiction on widening projects. Only new highways.

    Some more food for thought if your property has some environmental significance. However, don't forget, if you run to the government for 'protection' from highway development, you've also got to play by their rules on other issues on what you can do with 'your' land.

    John
     
  6. SteveD(TX)

    SteveD(TX) Well-Known Member

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    You don't have to accept their first offer, which very well could be based on assessed values set by the county or local taxing authority, etc. My best advice to you is to become familiar with actual property values in your area. Make sure that any transfer of fee title (right-of-way dedication) is based upon market value. Secondly, any temporary easements should reflect the market value, similarly to renting your land for the duration of the project. These are often based on areas needed to place their equipment, piling dirt, etc. If they use your land temporarily, they need to pay for it. Third, the condemning authority must pay for any damages to your property, or reduction in value which occur as a result of this road project. Sounds like they are taking some trees that you don't really care for, so that may not be a problem. Just make them show you to your satisfaction that you are being paid fairly. This usually involves an appraisal - look at the sales comps and how the appraiser arrived at the value, etc. It's not rocket science, so if you do your homework, you should be able to come up with a negotiated price that is fair to all. If you just can't come up with a fair offer, you might want to get your own appraisal. The last thing they typically want to do, is go to a condemnation hearing, unless they truly feel you are being unreasonable.

    BTW, this is what I do for a living. Mainly, I do work for cities and the state; occassionally for the fed. government. But I did recently help 3 property owners get a combined total of over half a million bucks from the city/state, over and above the original offer. (This was for high dollar commercial property, though). Good luck and fee free to PM me if you have any questions. Of course, any legal advice would have to come from an attorney (not me).
     
  7. RenieB

    RenieB Well-Known Member

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    I do have a surveyors drawing of my property that is very recent. At the meeting we had they had a large aerial view and my property was marked the same as my copy. It doesn't appear that they are going to be taking much of my land. The land they seem to be taking the most of is on both sides of my home. I am concerned that they are awfully close or on my septic system and I will discuss this with them when the meet with us. I have known people that have really gotten burnt in the past but they have had a lot more property taken then we are. By the way I live in Maine. This is a huge project they are doing and it will eventually affect everyone on this road. There is a piece of property across the road from us that has another road that goes down to a lake on the other side and across from us can not be built on because the property is to narrow and it looks like the state is taking more land over there than ours. Property values in this area are going up all the time here and I will have to check into what the cost is per acre. Our property is valued at about $125,000 but that is with the house and out building. The property they will be taking is unused and can't be built on or subdivided. I don't mind the road being widened as it is dangerous in places but I want to get the fair value of my land.
    Thanks for all the advice.

    RenieB
     
  8. j.r. guerra in s. tx.

    j.r. guerra in s. tx. Well-Known Member

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    I would also take video tape of what there is now and most especially the condition of it. Heavy road grading equipment can make quite a vibration, cracking gypsum board, foundation / sidewalk cracks, etc. Also ask as to limits of your responsibility of keeping roadside clean. Would county be cutting the grass or you? How far, to the right of way? At least, you will know beforehand.
     
  9. Swampdweller

    Swampdweller Well-Known Member

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    http://www.landrights.com/

    This site does not address the root of the problem, but then most people don't want to address the root of the problem, either. It may help you though.
    Knowledge is power.

    Swampdweller