Lawyers talk eminent domain, property rights | News
As the Oklahoma Turnpike Authority plans to bring a new tollway and an extension of an existing toll road to Norman, many owners are wondering what their rights are as they watch the audacious authority of a eminent domain.
Poe & Associates, engineers hired by the toll highway authority, reported at a town hall on Thursday that the authority had received up to 600 calls and emails from people who had questions about the plan and the property acquisition process.
Law firms that specialize in property rights or have successfully sued the Toll Highway Authority or the Oklahoma Department of Transportation told The Transcript that the government has sweeping powers. and few limitations with regard to toll roads.
Proprietary Rights vs Eminent Domain
After the toll highway authority hires an independent certified appraiser, the owner can accept the offer or counter the owner’s appraisal report, according to the authority’s website. If negotiations fail, the authority asks the district court to condemn the property to the right of eminent domain. The court decides on just compensation.
Under state law, eminent domain is justified by “necessary public use” of a property and must compensate the owner based on “fair market value,” McAfee & Taft’s attorney said, Colby Byrd.
But “necessary” is a term that carries a broad definition that the government easily justifies, Byrd said.
“A 2005 U.S. Supreme Court case ruled that it essentially allowed certain takes [of property] for economic purposes, but Oklahoma rejected that. We have a strict public use limitation,” Byrd said. “The property they take must be necessary for this public use. That’s a pretty low bar to show that it’s necessary. You can see a scenario where maybe the toll highway authority announced a toll highway and instead of just condemning the land they need for the highway and a reasonable amount of land next to it, they will condemn large tracts of land that they do not need. It wouldn’t be necessary and that’s kind of what [definition] gets us.
Trae Gray, founding partner of the Landowner Law Firm, said unnecessary public use should be obvious to overcome authority plans.
“About the one situation where it might not be [justified] that is, if they had entered into a contract with Walmart to install a toll highway that would feed Walmart directly for the benefit of Walmart,” Gray suggested.
Byrd said the low bar means a high pass rate for the toll highway authority.
“Generally speaking, if the government goes through the process as a resolution of its board of directors and it says, ‘We need X number of acres to do this project,’ it’s likely — and I would say almost certainly — that it will be confirmed,” he said.
While public input can influence the turnpike authority’s plans, Byrd said “when it comes to the statutory authority’s copper tax…if they meet this public use and to this necessity as a double requirement, they will be able to take ownership.”
However, a competing necessary public use, such as a public water supply, could pose a unique legal challenge for the authority, Byrd said.
The authority has not yet completed an environmental study on Lake Thunderbird, which is a major water supply for the town of Norman. City staff reported to the city council that the lake had been declared degraded by the Oklahoma Department of Environmental Quality.
“It’s an interesting question whether one public use could defeat another public use,” Byrd said. “I haven’t looked at that particular issue, but I guess as long as the toll road authority can demonstrate that they’ve done their environmental studies and checked those boxes, they can build a toll road. I’ll be interested to see what comes of it, as I’ve never encountered this in these toll road projects. »
City Attorney Kathryn Walker told the council on Tuesday that state governments were not required to meet the much stricter requirements of the Federal Environmental Protection Agency unless the authority n uses federal funds or falls under federal jurisdiction.
The toll road authority’s plans do not fall under any of these constraints, she said.
Agree or not agree?
State law requires the authority to purchase a property at fair market value, but if other compensation considerations such as property damage are taken into account, other losses are not part of the price, have said Gray and Byrd.
Some homeowners bought their homes decades ago and paid off their mortgages. The difference between the value of that home and the cost of buying a home in today’s market is a loss that is not considered a factor in fair market value.
“Probably not,” Byrd said. “There are strict standards for this. In a total hold, the entire property is fair market value.
After owners are notified in writing that their land is being acquired, the authority dispatches an “independent certified general appraiser,” Oklahoma Department of Transportation spokeswoman Jessica Brown said.
The appraiser must follow “uniform standards of professional appraisal practice”, she said in an email to the newspaper on Friday.
Byrd said these appraisers are bound by ethical standards and the appraisal is the bargaining point despite rumors that the authority pays a low or high percentage above that value.
“Reviewers have their own codes of ethics and are subject to certain standards,” he said. “When they sign an appraisal, they say they sign this value. I don’t know if I would phrase it as the OTA or the ODOT comes in low or high, it will depend on the raters and the area it goes through. Is it residential or commercial? Rural? It’s very factual, but it’s hard to talk about it other than in generalities, that’s how it works.
There are three value methods that Byrd says are used, the most common being the “comparable sales approach”: comparing properties, basing commercial property value on income, and basing value on land and construction cost improvements. Byrd said comparing properties is “by far” the most common option.
There is also the “partial seizure”, where only part of the property is wanted by the authority.
“The highway goes through the edge of your property or maybe it splits your property down the middle,” he said. “You always have the fair market value of the catch [land], but you must also assess the damage to the remaining property after the take. Damage normally has a damage value, but there can be several ways in which partial taking decreases the value.
Some examples of diminished or damaged value may be the loss of road access after the tollway is built, or the loss of scenic views that add value to the property, Byrd said.
Eminent domain in court
Once the authority has made an offer, the owner can either accept it or counter it with their own professional assessment report, but if negotiations fail, the case is sent back to court through a procedure eminent domain, Gray and Byrd said.
Three county landowners who have no interest in the property subject to condemnation are appointed by a judge as court commissioners.
“Everything we argue about [in court] is – all they seek to take and assuming they have the right to take it – is, what is it worth? Gray said.
The commissioners recommend an amount, called a reward. If the parties disagree on the commissioner’s decision, a jury trial ensues.
Gray and Byrd said that if the jury awards an amount 10% or more above the commissioner’s recommended amount, then the landowner can recover their court costs, attorney fees and the like. But this can backfire on you if the amount is less than the assigned commission.
Brown said the owner may be required to pay the authority’s court costs, but not attorney’s fees.
There is one right that stays with a landowner – the mineral rights. But some owners chose to sever those rights, Byrd said.
“The landowner has the ability to retain and sever groundwater rights,” he said. “These are important things to consider. We all know that groundwater is a precious resource and that it will become more and more so over the next few years.
While the timing for the start of construction and acquisition of the tollway remains uncertain, Bryd and Gray agreed that one certainty is indisputable: competing government and landowner interest.
“There’s a saying in business,” Gray said. “You don’t get what you deserve, you get what you bargain for. ODOT makes every effort to negotiate the best offer and obtain it at the lowest possible price. They have a fiduciary duty to the taxpayers of Oklahoma to do so. If you are a landowner, you must look out for your own interests. They’re not going to come out and pay a bargain, or anything more. They will pay as little as possible and get the most for every dollar spent. »
The advantage sentencing authorities have is “that they are repeat offenders,” Byrd said. “It’s their job. When the time comes, it can be very complicated, very nuanced. Many landowners will need an attorney to guide them through this process.
Advice for owners now? Byrd said he pays close attention to written notices to ensure landlords receive and respond to them.
Gray said the most important thing is not to feel rushed or rushed and “to fully understand the scope of the proposed take before considering making any decisions.”
“At the risk of sounding like a sales pitch,” Gray added, owners should consider that the authority “has a team of lawyers working on these cases.”
“For the landowner, doing it without a lawyer just isn’t smart.”