AASHTO 2005 Right of Way and Utilities Conference Austin, Texas

1. AASHTO 2005Right of Way and Utilities ConferenceAustin, Texas Acquisition Alternatives and Eminent Domain

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

19. AHTD Condemnation Procedures Circuit Court (Continued) • Just Compensation Deposited with Circuit Clerk • Possession Vests Immediately Upon Deposit • Order of Possession Issued • Parties in Possession Must Immediately Surrender the Property • Order Held in Abeyance for 20 - 30 Days

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

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

22. Administrative Settlements2003 - 2004 • Tracts Acquired 2,968 • Admin. Settlement 1,481 50% • Appraised Value $ 23.8 Million • Admin. Settlements $ 2.5 Million • Total Compensation $ 26.3 Million • Increase 10.5%

23. Legal Settlements: 2003 – 2004Consent Judgment • Total Tracts 235 • Settled by Consent 212 90% • Appraised Value $ 2.9 Million • Legal Settlements $ 0.5 Million • Total Compensation $ 3.4 Million • Increase 18%

24. Legal Settlements: 2003 – 2004Resolved by Trial • Total Tracts 235 • Settled by Trial 23 10% • Appraised Value $ 1.0 Million • Jury Award $ 1.1 Million • Total Compensation $ 2.1 Million • Increase 110%

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

26. Future Possibilities • Abandon the Court Order Process • Increase Administrative Settlements • Fewer Condemnations • Time • Money • Legislative Issues • Pay Attorney’s Fees • Non-Appraiser as Expert Witness

27. AASHTO 2005Right of Way and Utilities ConferenceAustin, Texas Acquisition Alternatives and Eminent Domain