AASHTO 2005Right of Way and Utilities

ConferenceAustin, Texas

Acquisition Alternatives and Eminent Acquisition Alternatives and Eminent DomainDomain

Arkansas State Highway and Transportation Department

Acquisition AlternativesAcquisition Alternatives

And Eminent DomainAnd Eminent Domain

AASHTO 2005 Right of WayAASHTO 2005 Right of Way

And Utilities ConferenceAnd Utilities Conference

Presented by Perry JohnstonPresented by Perry Johnston

AHTD Acquisition Program

Approximately 1,400 tracts annuallyApproximately 1,400 tracts annually

$17 Million - 22 Million per year$17 Million - 22 Million per year

2002 Condemnation Rate2002 Condemnation Rate 6% 6%

2003 Condemnation Rate2003 Condemnation Rate 8% 8%

2004 Condemnation Rate 2004 Condemnation Rate 13%13%

AHTD Acquisition Program

8 Negotiators8 Negotiators 4 Appraiser/Negotiators4 Appraiser/Negotiators 2 Closing Agents2 Closing Agents 2 Closing Assistants2 Closing Assistants 1 Administrative Assistant1 Administrative Assistant

AHTD Acquisition Methods

Majority of Contacts made in PersonMajority of Contacts made in Person About 90%About 90%

Small number or contacts by MailSmall number or contacts by Mail About 10%About 10%

Negotiations by Mail Pilot Project - Fall 2005Negotiations by Mail Pilot Project - Fall 2005 Analyze ResultsAnalyze Results Expand Program if SuccessfulExpand Program if Successful

AHTD Negotiation Tools

Appraisal Provided to Property OwnerAppraisal Provided to Property Owner Since 1985Since 1985

Referral to Reviewing AppraiserReferral to Reviewing Appraiser Discuss by TelephoneDiscuss by Telephone Meet in PersonMeet in Person

Provide Appraisals of Similar PropertiesProvide Appraisals of Similar Properties

AHTD Settlement Process

Informal Mediation ProcessInformal Mediation Process Arkansas Administrative Procedures Act Arkansas Administrative Procedures Act

Not ApplicableNot Applicable

Legal Counsel Prefers Formal ProcedureLegal Counsel Prefers Formal Procedure Subject to Arkansas Administrative Subject to Arkansas Administrative

Procedures ActProcedures Act

AHTD Settlement Process:Uncomplicated Acquisitions

Appeal Letter – From Property Owner to ROW Appeal Letter – From Property Owner to ROW Division HeadDivision Head Outlines Settlement ProposalOutlines Settlement Proposal Presents Additional InformationPresents Additional Information

Meeting with AHTD PersonnelMeeting with AHTD Personnel AppraisalAppraisal AcquisitionAcquisition Roadway DesignRoadway Design LegalLegal

AHTD Settlement Process:Uncomplicated Acquisitions (Continued)

AHTD Personnel Review Settlement ProposalAHTD Personnel Review Settlement Proposal Determine points of agreementDetermine points of agreement Submit FindingsSubmit Findings

ROW Division Head sends Response LetterROW Division Head sends Response Letter Points of AgreementPoints of Agreement Final OfferFinal Offer

Deadline for AcceptanceDeadline for Acceptance If not accepted – Condemn at FMVIf not accepted – Condemn at FMV

AHTD Settlement Process:Complicated Acquisitions

Appeal Letter – From Property Owner to ROW Division Appeal Letter – From Property Owner to ROW Division HeadHead Outlines Settlement ProposalOutlines Settlement Proposal Presents Additional InformationPresents Additional Information

AHTD/Property Owner MeetingAHTD/Property Owner Meeting Property OwnerProperty Owner Property Owner’s AttorneyProperty Owner’s Attorney AcquisitionAcquisition Roadway DesignRoadway Design LegalLegal Reviewing AppraiserReviewing Appraiser

AHTD Settlement Process:Complicated Acquisitions (Continued)

Meeting on Property, if PossibleMeeting on Property, if Possible Recorded TranscriptsRecorded Transcripts

Not Sworn TestimonyNot Sworn Testimony ROW Division Head sends Response LetterROW Division Head sends Response Letter

Points of AgreementPoints of Agreement Final OfferFinal Offer

Deadline for AcceptanceDeadline for Acceptance If not accepted – Condemn at FMVIf not accepted – Condemn at FMV

AHTD Condemnation Procedures

Two Condemnation MethodsTwo Condemnation Methods County Court OrderCounty Court Order

Act 200 of 1899Act 200 of 1899 Primary Method 1900 – 1953Primary Method 1900 – 1953

Condemnation through Circuit CourtCondemnation through Circuit Court 1953 - Present1953 - Present

AHTD Condemnation Procedures: County Court Order

Primary Acquisition Method from 1900 – Primary Acquisition Method from 1900 – 19531953

Commission Petitions County Judge to Commission Petitions County Judge to Acquire Needed ROWAcquire Needed ROW

Immediate Possession Upon FilingImmediate Possession Upon Filing One Year to Assert a Claim for One Year to Assert a Claim for

CompensationCompensation

AHTD Condemnation Procedures:County Court Order (Continued)

State Must Prove NoticeState Must Prove Notice Actual Entry on the LandActual Entry on the Land

Entry on Any Area Constitutes Notice for Entry on Any Area Constitutes Notice for Entire Court OrderEntire Court Order

Widening the Roadway on Any Part of Land Widening the Roadway on Any Part of Land Described in the OrderDescribed in the Order

Posting Highway SignsPosting Highway Signs Mowing or Other MaintenanceMowing or Other Maintenance Objecting to an EncroachmentObjecting to an Encroachment

AHTD Condemnation Procedures:County Court Order (Continued)

Property Owner May Submit a Claim within One Year Property Owner May Submit a Claim within One Year of Filingof Filing

Claim Presented to the County Judge at a HearingClaim Presented to the County Judge at a Hearing No JuryNo Jury Attorneys Usually InvolvedAttorneys Usually Involved

Sworn TestimonySworn Testimony AHTD Will Honor County Judge’s DecisionAHTD Will Honor County Judge’s Decision If not satisfied, Property Owner May Appeal to Circuit If not satisfied, Property Owner May Appeal to Circuit

CourtCourt Proceedings of Hearing Not AdmissibleProceedings of Hearing Not Admissible

AHTD Condemnation ProceduresCircuit Court

Arkansas Constitution Amended – 1953Arkansas Constitution Amended – 1953 Created the Arkansas State Highway Created the Arkansas State Highway

Commission as Constitutionally Commission as Constitutionally Independent AgencyIndependent Agency

Legislature Delegated Broad AuthorityLegislature Delegated Broad Authority Authority to Acquire Property for Authority to Acquire Property for

Highway PurposesHighway Purposes Authority to Condemn Authority to Condemn

AHTD Condemnation ProceduresCircuit Court (Continued)

Commission Discretion – Amount of Commission Discretion – Amount of Property AcquiredProperty Acquired Entire LotEntire Lot Entire BlockEntire Block Entire TractEntire Tract

May Acquire Even If Not Immediately May Acquire Even If Not Immediately Needed for Highway PurposesNeeded for Highway Purposes

AHTD Condemnation ProceduresCircuit Court (Continued)

Declaration of Taking Signed by DirectorDeclaration of Taking Signed by Director Declaration Includes:Declaration Includes:

Statement of AuthorityStatement of Authority Statement of Public UseStatement of Public Use Description of PropertyDescription of Property Just Compensation to be DepositedJust Compensation to be Deposited

AHTD Condemnation ProceduresCircuit Court (Continued)

Just Compensation Deposited with Circuit Just Compensation Deposited with Circuit ClerkClerk Possession Vests Immediately Upon Possession Vests Immediately Upon

DepositDeposit Order of Possession IssuedOrder of Possession Issued

Parties in Possession Must Immediately Parties in Possession Must Immediately Surrender the PropertySurrender the Property

Order Held in Abeyance for 20 - 30 DaysOrder Held in Abeyance for 20 - 30 Days

AHTD Condemnation ProceduresCircuit Court (Continued)

Property Owner may Withdraw Deposit Property Owner may Withdraw Deposit Prior to TrialPrior to Trial Waive right to challenge necessity of Waive right to challenge necessity of

takingtaking Not Permitted to File Motion for Special Not Permitted to File Motion for Special

DamagesDamages Court may assess rentCourt may assess rent

AHTD Condemnation ProceduresCircuit Court (Continued)

Burden of Proof is on the Property OwnerBurden of Proof is on the Property Owner

Must Prove their Claim by a Must Prove their Claim by a Preponderance of the EvidencePreponderance of the Evidence

Must Produce their Evidence FirstMust Produce their Evidence First

AHTD Presents a Rebuttal to the Assertions AHTD Presents a Rebuttal to the Assertions of the Property Ownerof the Property Owner

Administrative Settlements2003 - 2004

Tracts AcquiredTracts Acquired 2,9682,968 Admin. SettlementAdmin. Settlement 1,4811,481 50%50%

Appraised ValueAppraised Value $ 23.8 Million$ 23.8 Million Admin. SettlementsAdmin. Settlements $ 2.5 Million$ 2.5 Million Total CompensationTotal Compensation $ 26.3 Million$ 26.3 Million

IncreaseIncrease 10.5%10.5%

Legal Settlements: 2003 – 2004Consent Judgment

Total TractsTotal Tracts 235235 Settled by ConsentSettled by Consent 212212 90%90%

Appraised ValueAppraised Value $ 2.9 Million$ 2.9 Million Legal SettlementsLegal Settlements $ 0.5 Million$ 0.5 Million Total CompensationTotal Compensation $ 3.4 Million$ 3.4 Million

IncreaseIncrease 18%18%

Legal Settlements: 2003 – 2004Resolved by Trial

Total TractsTotal Tracts 235235 Settled by TrialSettled by Trial 23 23 10%10%

Appraised ValueAppraised Value $ 1.0 Million$ 1.0 Million Jury AwardJury Award $ 1.1 Million$ 1.1 Million Total CompensationTotal Compensation $ 2.1 Million$ 2.1 Million

IncreaseIncrease 110%110%

Future Plans

Increased Use of Informal MediationIncreased Use of Informal Mediation Increased Use of Court Order for ROW Increased Use of Court Order for ROW

AcquisitionAcquisition Increased Use of Appraiser/NegotiatorIncreased Use of Appraiser/Negotiator Increase Negotiations and Closings by MailIncrease Negotiations and Closings by Mail

Pilot Project – Fall 2005Pilot Project – Fall 2005Analyze ResultsAnalyze ResultsExpand Program if SuccessfulExpand Program if Successful

Future Possibilities

Abandon the Court Order ProcessAbandon the Court Order Process Increase Administrative SettlementsIncrease Administrative Settlements

Fewer CondemnationsFewer CondemnationsTimeTimeMoneyMoney

Legislative IssuesLegislative Issues Pay Attorney’s FeesPay Attorney’s Fees Non-Appraiser as Expert Witness Non-Appraiser as Expert Witness

AASHTO 2005Right of Way and Utilities

ConferenceAustin, Texas

Acquisition Alternatives and Eminent Acquisition Alternatives and Eminent DomainDomain