I was surprised yet happy to read that District Court Judge Scott Skavdahl in Natrona County, Wyoming ruled that a case involving the state of Wyoming’s right to take property from a private owner can proceed to trial.  The condemning authority in this case is the Wyoming Department of Transportation (WYDOT), who is attempting to acquire property from private owners for a road construction project.

Based upon a Casper Star Tribune article, it appears that the issues to be litigated are necessity and whether or not the state followed the eminent domain laws by making a good faith effort to acquire the property prior to initiating condemnation procedures.

In Wyoming, prior to initiating condemnation procedures, a condemning authority must make a reasonable effort to acquire the property by negotiation (Wyo. Stat. § 1-26-509).   Additionally, the condemning authority’s initial written offer must be made at least 90 days before commencing a condemnation proceeding (Wyo. Stat. § 1-26-509).  These are just several examples of steps a condemning authority must take in order to make a good faith effort to acquire property prior to initiating condemnation procedures.

The public necessity issue in this case relates to the amount of property the state is attempting to acquire.  The property owners claim that the state is taking 210 feet more than what is necessary to complete the project.  The state argues they need a wider ROW in order to control erosion and build embankments.  Additionally, they claim they will eventually widen the road to four lanes, which would require more property.

In order for the government, or condemning authority, to use eminent domain to acquire property, several conditions must be met:  the taking must be for a public use and the property owner must be paid just compensation.  There is also the issue of necessity, which I consider a sub-class of public use. Necessity is the test to determine the amount of property needed to adequately undertake the public purpose.  If a public road requires a 100-foot wide strip of land, a strip of land 200 feet wide could not be taken because it would exceed what was necessary to accomplish the public purpose and thereby fail the test of necessity.

In this case, the issue of public use is met because the acquisition is for a road construction project, and the issue of just compensation can be litigated during the eminent domain proceeding.  The issue of necessity, however, has not been fully satisfied in this case.  WYDOT can only acquire the amount of the property necessary to construct a two lane road.  If the amount of property they are attempting to acquire is more than what is necessary to construct the 2 lane road, then the taking does meet the necessity test.

While it’s clear that some property must be acquired in order to complete this project, it’s not overly apparent how much property should be acquired, and therefore a trial seems necessary. Fortunately for the property owners, Wyo.Stat. § 16-7-116 states that reasonable attorney’s fees will be reimbursed to a property owner if the court finds that the property can not be taken by eminent domain.

{ 0 comments }

TRACKBACK URL FOR THIS POST:
http://www.condemnation-law.com/blog/articles-eminent-domain/1726/necessity-test-to-be-litigated-in-wyoming-eminent-domain-case/trackback/

As many of you already know, there is a filing deadline of September 1st for property owners on the Atlantic Yards Project who wish to pursue an additional damages claim.

New York Eminent Domain Law states that a property owner has 2 years to file a claim for additional damages if a property owner signs the offer for advanced payment.  However, a court order was issued requiring claimants for the Atlantic Yards project to file their claim by September 1st, 2010.

If you signed the offer for advanced payment, or if you have yet to receive an offer and wish to pursue an additional damages claim, we advise you act quickly.

Please address your questions to Dan Biersdorf at 866.339.7242.

{ 0 comments }

TRACKBACK URL FOR THIS POST:
http://www.condemnation-law.com/blog/firm-projects/new-york-projects/atlantic-yards-new-york-projects-firm-projects/1723/filing-deadline-for-atlantic-yards/trackback/

US 301 Delaware Project Update

August 16, 2010

We recently spoke to an engineer at the Delaware Department of Transportation (DelDOT) who said that early property acquisitions have commenced.  These properties include total acquisitions and homeowners willing to sell.   The remaining properties will be acquired at a date yet to be determined.
Construction is scheduled to begin in 2012 and continue thru 2015.
Read more [...]

Read the full article →

Attorney Fee Recovery in Abandonment Cases

July 27, 2010

Earl Giefer, a 94 year old farmer from Oak Creek, Wisconsin, thought his fight with the city over their attempt to acquire his 25-acre property had ended.  In June, the Oak Creek City Council decided to stop their pursuit to acquire his property through eminent domain.  Now, however, the city of Oak Creek is refusing [...]

Read the full article →

Additional Funds Approved for the I-74 Corridor Project

July 22, 2010

Senator Tom Harkin (D-IA) has secured an additional $15 million for various transportation improvements, housing initiatives and economic development projects for the state of Iowa.  Harkin, a senior member of the Housing and Urban Development Appropriations Subcommittee, announced that the funding will be included in the Fiscal Year 2011 bill.  The FY 2011 bill was [...]

Read the full article →

Philadelphia Airport Expansion

July 22, 2010

A planned $5.2 billion expansion of the Philadelphia International Airport could begin construction as soon as next summer.  The plan calls for the lengthening of two runways, the construction of another and the expansion of existing parking facilities.  The airport would also build a unified ground transportation center and a new commuter terminal, among other [...]

Read the full article →

Do Public Use Rules Apply to Remaining Owners in the Eddy Knolls Neighborhood?

July 21, 2010

In an effort to provide affordable housing for their staff and faculty, the University of Notre Dame has teamed up with the Northeast Neighborhood Revitalization Organization and the City of South Bend, Indiana to build a new neighborhood comprised of 55 new single family homes.
The new neighborhood, to be known as Eddy Knolls, [...]

Read the full article →

Second Street Redevelopment Project

July 15, 2010

The Berks County Redevelopment Authority is moving forward with the Second Street Redevelopment and Grand Avenue Extension Project in Hamburg, Pennsylvania.  The Second Street Redevelopment Area includes commercial and industrial buildings as well as a number of residential buildings and structures.  The Redevelopment Area is bordered by State Route 61 and Schuylkill River to the [...]

Read the full article →

If Eminent Domain is Necessary for the Water Plant Project in Ames, IA, would the Public Use Requirement be met?

July 8, 2010

The $50.1 Million dollar water plant project in the City of Ames, Iowa has caused quite a commotion not only with property owners in the area, but with State legislators as well.
The Ames Tribune published a story regarding the City of Ames plan to construct a water plant on 44 acres of federally owned land [...]

Read the full article →

Eminent Domain Procedure Law Hearing-ARC Tunnel Project

July 8, 2010

Pursuant to §201-204 of the New York Eminent Domain Procedure Law, a public hearing was held on July 7th, 2010 at the Pennsylvania Hotel in midtown Manhattan to consider the proposed acquisition by condemnation of certain properties and property interests in Manhattan.
The purpose of the meeting was to inform the public of the project, review [...]

Read the full article →