Presenting a live 90 ‐ minute webinar with interactive Q&A Eminent Domain: Redevelopment p Challenges for Local Government Navigating Federal Funding Requirements, Challenges for Public Utilities in Right ‐ of ‐ Way Projects, and Objections to Taking for Public Use THURS DAY, DECEMBER 1, 2011 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today s faculty features: Today’s faculty features: J. Casey Pipes, Partner, Helmsing Leach Herlong Newman & Rouse , Mobile, Ala. Anthony Della Pelle, Partner, McKirdy & Riskin , Morristown, N.J. Rick E. Rayl, Partner, Nossaman , Irvine, Calif. Bradford B. Kuhn, Attorney, Nossaman , Irvine, Calif. Robert H. Thomas, Director, Damon Key Leong Kupchak Hastert , Honolulu Mark M. Murakami, Director, Damon Key Leong Kupchak Hastert , Honolulu The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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FEDERAL MONEY FEDERAL MONEY FEDERAL CONDITIONS FEDERAL CONDITIONS ____________ Casey Pipes Helmsing, Leach, Herlong, Newman & Rouse, P.C. H l i L h H l N & R P C Mobile, Alabama jcp@helmsinglaw.com 5
Spending Clause Spending Clause “The Congress shall have power The Congress shall have power … to pay to pay the debts and provide for the common defense and general welfare of the United defense and general welfare of the United States...” U.S. Const., Art. I, § 8. 6
Sources of Federal Conditions Sources of Federal Conditions • Federal Grant Terms and Conditions Federal Grant Terms and Conditions • Federal Appropriation Bills • Contracts C t t • Federal Laws and Regulations • State Regulations 7
“The Uniform Act” The Uniform Act The Uniform Relocation Assistance and The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 1970 • 42 U.S.C. Sections 4601, et seq . • 49 C.F.R. Part 24 49 C.F.R. Part 24 - Relocation Assistance Relocation Assistance - Real Property Acquisition Policies 8
Applicability Applicability Whenever any federal dollars are utilized Whenever any federal dollars are utilized in any phase of a project that involves real property acquisition property acquisition – No federal money used to acquire property N f d l d t i t – Any agency using federal money – Any percentage or amount of federal money A f f d l 9
Property Acquisition Policy Goals Property Acquisition Policy Goals Balancing competing government interests: Balancing competing government interests: – 5 th Amendment Compliance • Due Process to Owner • Due Process to Owner • Just Compensation to Owner – Project completion Project completion • Timely Agency access to property – Efficient use of government money Efficient use of government money • Fair price for Agency (public) • Lawsuit avoidance 10
Notice to Owner Notice to Owner You must advise the property owners and You must advise the property owners and occupants of your intent to acquire the property and of their rights under the p p y g Uniform Act in writing – Brochures are available for this purpose – Do it in a way that compliance can be proved later at trial or in an audit 11
Appraisals Appraisals Required except when: Required except when: – property value is expected to be $10,000 or less and if the valuation determination is not less and if the valuation determination is not complicated – property will be donated and owner waives property will be donated and owner waives appraisal requirement 12
Appraisal Reports Appraisal Reports • Only “Complete” or “Summary” appraisals Only Complete or Summary appraisals are acceptable – Restricted Use appraisals are unacceptable “Restricted Use” appraisals are unacceptable • Must be developed and reported in compliance with the Uniform Standards for Professional Appraisal Practices (USPAP) f ( S ) and must be in writing 13
Review Appraisals Review Appraisals A Review Appraisal is required every time A Review Appraisal is required every time an appraisal is required. This means you need two different appraisers i 14
Opportunity to Accompany Opportunity to Accompany You must give the owner an opportunity to You must give the owner an opportunity to accompany the appraiser during the property inspection property inspection – Document compliance in a way that it can be proved later at trial or in an audit proved later at trial or in an audit 15
Written Offer Written Offer A breakdown of the offer, but not necessarily the A breakdown of the offer, but not necessarily the appraisal report, must be submitted with the written offer • If appraised: – “We have had your property appraised by a qualified independent or staff real estate appraiser.” • If not appraised: If t i d – “We have estimated the value of your property that is needed for this project ” needed for this project. 16
90 Day Displacement Notice 90 Day Displacement Notice Occupants who will be displaced by the Occupants who will be displaced by the taking must be given at least 90 days notice prior to the date they are required to notice prior to the date they are required to vacate – Send it early Send it early – Document it in a way that can be proved later at trial or in an audit at trial or in an audit 17
No Coercion Allowed! No Coercion Allowed! • Give owner sufficient notice Give owner sufficient notice • Give the owner a sufficient opportunity to consider the written offer consider the written offer • Negotiations encouraged • Advance or delay negotiations or acquisition date for improper purpose • Cannot assess the remainder simply to recover acquisition costs (forced donation) q ( ) 18
Pay for Property Pay for Property Prior to taking possession you must pay Prior to taking possession, you must pay the Owner for the property - Deposit it in Court for Owner s benefit Deposit it in Court for Owner’s benefit - Interest for delay in receipt 19
Withdrawal of Deposit Withdrawal of Deposit • No waiver of defenses to taking No waiver of defenses to taking – 49 CFR 24.102(h) • Full amount deposited prior to possession Full amount deposited prior to possession – 49 CFR 24.102(j) "for the benefit of the owner” owner – Mandatory deposit may be more than Offer Non-regulatory Supplement for Part 24, Subpart B, Section 24.102 Section 24.102 20
Settlement Authority Settlement Authority Administrative Settlements above Offer Administrative Settlements above Offer – reasonable, prudent and in the public interest – written justification required written justification required – all relevant factors can be considered State Guidelines may be more specific - safe harbors (10% above offer) 21
Certification Certification • Agency must certify that it has acquired all Agency must certify that it has acquired all the property and that it complied with the Uniform Act prior to letting construction Uniform Act prior to letting construction contract • Agency must promise to comply with the • Agency must promise to comply with the Uniform Act as part of appropriation • Audit A dit 22
Violations Violations • Loss of federal money Loss of federal money – for project – in general in general • Possible dismissal of condemnation action – Lack of Necessity or Public Use if project f f cannot be built without federal aid – Not a defense to taking by itself N t d f t t ki b it lf 23
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