AASHTO 2005 Right of Way and Utilities Conference Austin, Texas Acquisition Alternatives and Eminent Domain

Arkansas State Highway and Transportation Department Acquisition Alternatives And Eminent Domain AASHTO 2005 Right of Way And Utilities Conference Presented by Perry Johnston

AHTD Acquisition Program Approximately 1,400 tracts annually Approximately 1,400 tracts annually $17 Million - 22 Million per year $17 Million - 22 Million per year 2002 Condemnation Rate 6% 2002 Condemnation Rate 6% 2003 Condemnation Rate 8% 2003 Condemnation Rate 8% 2004 Condemnation Rate 13% 2004 Condemnation Rate 13%

AHTD Acquisition Program 8 Negotiators 8 Negotiators 4 Appraiser/Negotiators 4 Appraiser/Negotiators 2 Closing Agents 2 Closing Agents 2 Closing Assistants 2 Closing Assistants 1 Administrative Assistant 1 Administrative Assistant

AHTD Acquisition Methods Majority of Contacts made in Person Majority of Contacts made in Person About 90% About 90% Small number or contacts by Mail Small number or contacts by Mail About 10% About 10% Negotiations by Mail Pilot Project - Fall 2005 Negotiations by Mail Pilot Project - Fall 2005 Analyze Results Analyze Results Expand Program if Successful Expand Program if Successful

AHTD Negotiation Tools Appraisal Provided to Property Owner Appraisal Provided to Property Owner Since 1985 Since 1985 Referral to Reviewing Appraiser Referral to Reviewing Appraiser Discuss by Telephone Discuss by Telephone Meet in Person Meet in Person Provide Appraisals of Similar Properties Provide Appraisals of Similar Properties

AHTD Settlement Process Informal Mediation Process Informal Mediation Process Arkansas Administrative Procedures Act Not Applicable Arkansas Administrative Procedures Act Not Applicable Legal Counsel Prefers Formal Procedure Legal Counsel Prefers Formal Procedure Subject to Arkansas Administrative Procedures Act Subject to Arkansas Administrative Procedures Act

AHTD Settlement Process: Uncomplicated Acquisitions Appeal Letter – From Property Owner to ROW Division Head Appeal Letter – From Property Owner to ROW Division Head Outlines Settlement Proposal Outlines Settlement Proposal Presents Additional Information Presents Additional Information Meeting with AHTD Personnel Meeting with AHTD Personnel Appraisal Appraisal Acquisition Acquisition Roadway Design Roadway Design Legal Legal

AHTD Settlement Process: Uncomplicated Acquisitions (Continued) AHTD Personnel Review Settlement Proposal AHTD Personnel Review Settlement Proposal Determine points of agreement Determine points of agreement Submit Findings Submit Findings ROW Division Head sends Response Letter ROW Division Head sends Response Letter Points of Agreement Points of Agreement Final Offer Final Offer Deadline for Acceptance Deadline for Acceptance If not accepted – Condemn at FMV If not accepted – Condemn at FMV

AHTD Settlement Process: Complicated Acquisitions Appeal Letter – From Property Owner to ROW Division Head Appeal Letter – From Property Owner to ROW Division Head Outlines Settlement Proposal Outlines Settlement Proposal Presents Additional Information Presents Additional Information AHTD/Property Owner Meeting AHTD/Property Owner Meeting Property Owner Property Owner Property Owners Attorney Property Owners Attorney Acquisition Acquisition Roadway Design Roadway Design Legal Legal Reviewing Appraiser Reviewing Appraiser

AHTD Settlement Process: Complicated Acquisitions (Continued) Meeting on Property, if Possible Meeting on Property, if Possible Recorded Transcripts Recorded Transcripts Not Sworn Testimony Not Sworn Testimony ROW Division Head sends Response Letter ROW Division Head sends Response Letter Points of Agreement Points of Agreement Final Offer Final Offer Deadline for Acceptance Deadline for Acceptance If not accepted – Condemn at FMV If not accepted – Condemn at FMV

AHTD Condemnation Procedures Two Condemnation Methods Two Condemnation Methods County Court Order County Court Order Act 200 of 1899 Act 200 of 1899 Primary Method 1900 – 1953 Primary Method 1900 – 1953 Condemnation through Circuit Court Condemnation through Circuit Court Present Present

AHTD Condemnation Procedures: County Court Order Primary Acquisition Method from 1900 – 1953 Primary Acquisition Method from 1900 – 1953 Commission Petitions County Judge to Acquire Needed ROW Commission Petitions County Judge to Acquire Needed ROW Immediate Possession Upon Filing Immediate Possession Upon Filing One Year to Assert a Claim for Compensation One Year to Assert a Claim for Compensation

AHTD Condemnation Procedures: County Court Order (Continued) State Must Prove Notice State Must Prove Notice Actual Entry on the Land Actual Entry on the Land Entry on Any Area Constitutes Notice for Entire Court Order Entry on Any Area Constitutes Notice for Entire Court Order Widening the Roadway on Any Part of Land Described in the Order Widening the Roadway on Any Part of Land Described in the Order Posting Highway Signs Posting Highway Signs Mowing or Other Maintenance Mowing or Other Maintenance Objecting to an Encroachment Objecting to an Encroachment

AHTD Condemnation Procedures: County Court Order (Continued) Property Owner May Submit a Claim within One Year of Filing Property Owner May Submit a Claim within One Year of Filing Claim Presented to the County Judge at a Hearing Claim Presented to the County Judge at a Hearing No Jury No Jury Attorneys Usually Involved Attorneys Usually Involved Sworn Testimony Sworn Testimony AHTD Will Honor County Judges Decision AHTD Will Honor County Judges Decision If not satisfied, Property Owner May Appeal to Circuit Court If not satisfied, Property Owner May Appeal to Circuit Court Proceedings of Hearing Not Admissible Proceedings of Hearing Not Admissible

AHTD Condemnation Procedures Circuit Court Arkansas Constitution Amended – 1953 Arkansas Constitution Amended – 1953 Created the Arkansas State Highway Commission as Constitutionally Independent Agency Created the Arkansas State Highway Commission as Constitutionally Independent Agency Legislature Delegated Broad Authority Legislature Delegated Broad Authority Authority to Acquire Property for Highway Purposes Authority to Acquire Property for Highway Purposes Authority to Condemn Authority to Condemn

AHTD Condemnation Procedures Circuit Court (Continued) Commission Discretion – Amount of Property Acquired Commission Discretion – Amount of Property Acquired Entire Lot Entire Lot Entire Block Entire Block Entire Tract Entire Tract May Acquire Even If Not Immediately Needed for Highway Purposes May Acquire Even If Not Immediately Needed for Highway Purposes

AHTD Condemnation Procedures Circuit Court (Continued) Declaration of Taking Signed by Director Declaration of Taking Signed by Director Declaration Includes: Declaration Includes: Statement of Authority Statement of Authority Statement of Public Use Statement of Public Use Description of Property Description of Property Just Compensation to be Deposited Just Compensation to be Deposited

AHTD Condemnation Procedures Circuit Court (Continued) Just Compensation Deposited with Circuit Clerk Just Compensation Deposited with Circuit Clerk Possession Vests Immediately Upon Deposit Possession Vests Immediately Upon Deposit Order of Possession Issued Order of Possession Issued Parties in Possession Must Immediately Surrender the Property Parties in Possession Must Immediately Surrender the Property Order Held in Abeyance for Days Order Held in Abeyance for Days

AHTD Condemnation Procedures Circuit Court (Continued) Property Owner may Withdraw Deposit Prior to Trial Property Owner may Withdraw Deposit Prior to Trial Waive right to challenge necessity of taking Waive right to challenge necessity of taking Not Permitted to File Motion for Special Damages Not Permitted to File Motion for Special Damages Court may assess rent Court may assess rent

AHTD Condemnation Procedures Circuit Court (Continued) Burden of Proof is on the Property Owner Burden of Proof is on the Property Owner Must Prove their Claim by a Preponderance of the Evidence Must Prove their Claim by a Preponderance of the Evidence Must Produce their Evidence First Must Produce their Evidence First AHTD Presents a Rebuttal to the Assertions of the Property Owner AHTD Presents a Rebuttal to the Assertions of the Property Owner

Administrative Settlements Tracts Acquired2,968 Tracts Acquired2,968 Admin. Settlement1,48150% Admin. Settlement1,48150% Appraised Value$ 23.8 Million Appraised Value$ 23.8 Million Admin. Settlements$ 2.5 Million Admin. Settlements$ 2.5 Million Total Compensation$ 26.3 Million Total Compensation$ 26.3 Million Increase10.5% Increase10.5%

Legal Settlements: 2003 – 2004 Consent Judgment Total Tracts235 Total Tracts235 Settled by Consent21290% Settled by Consent21290% Appraised Value$ 2.9 Million Appraised Value$ 2.9 Million Legal Settlements$ 0.5 Million Legal Settlements$ 0.5 Million Total Compensation$ 3.4 Million Total Compensation$ 3.4 Million Increase18% Increase18%

Legal Settlements: 2003 – 2004 Resolved by Trial Total Tracts235 Total Tracts235 Settled by Trial 2310% Settled by Trial 2310% Appraised Value$ 1.0 Million Appraised Value$ 1.0 Million Jury Award$ 1.1 Million Jury Award$ 1.1 Million Total Compensation$ 2.1 Million Total Compensation$ 2.1 Million Increase110% Increase110%

Future Plans Increased Use of Informal Mediation Increased Use of Informal Mediation Increased Use of Court Order for ROW Acquisition Increased Use of Court Order for ROW Acquisition Increased Use of Appraiser/Negotiator Increased Use of Appraiser/Negotiator Increase Negotiations and Closings by Mail Increase Negotiations and Closings by Mail Pilot Project – Fall 2005 Pilot Project – Fall 2005 Analyze Results Analyze Results Expand Program if Successful Expand Program if Successful

Future Possibilities Abandon the Court Order Process Abandon the Court Order Process Increase Administrative Settlements Increase Administrative Settlements Fewer Condemnations Fewer Condemnations Time Time Money Money Legislative Issues Legislative Issues Pay Attorneys Fees Pay Attorneys Fees Non-Appraiser as Expert Witness Non-Appraiser as Expert Witness

AASHTO 2005 Right of Way and Utilities Conference Austin, Texas Acquisition Alternatives and Eminent Domain