"Most municipalities have chosen to RESPECT
their citizenry and make the HONORABLE decision
to pay their property owners full appraisal value when the city takes property
for a municipal project. Unfortunately, the city of Fayetteville is not doing
that." Quote from an experienced professional AR appraiser
Fayetteville's Policy toward Full Takings and Easements
Jan 22, 2012
The single most significant issue that impacts every eminent domain proceeding that the city undertakes is the issue of "full taking and easements". I have learned from professionals in the field this is a widely discussed topic among city municipalities.
When a municipality, or any government entity, "takes" a piece of private property
through eminent domain the law is clear. While the property owner must
surrender the land needed to the government entity or utility for purposes that
have been deemed a “higher public good”, the private property owner is due
“Just Compensation” for this “taking”.
For a Right of Way (ROW) Fayetteville operates
the same as its neighboring towns and cities by paying "full taking", ie. full current appraisal value. And any utility
company taking a “Utility Easement” must by law pay this same full market appraisal value.
There is no law REQUIRING towns & cities to offer “Just Compensation”. The
law states the property owner is DUE full appraisal value. This is an important
distinction since governments contact their
citizens directly. Most
local citizens are not familiar with AR land use law related to “Just Compensation” in eminent domain. The City of Fayetteville appears to be aware of this lack of knowledge by its citizenry and has been using it to its advantage and the impacted citizens' disadvantage. While
citizens are due “Just Compensation” the city is not legally bound to offer it
in negotiations. This allows Fayetteville to mislead impacted property owners.
Here are some of the facts that sadly have led me to that conclusion:
In my Jun 28, 2010 "Offer Letter" (OL) Mayor Jordan stated that 4000+sq.ft. of my property along Cato Springs Rd. was needed for a road,
Right of Way (ROW), & another for a “General Utility Easement". I'd be paid the full appraisal value for the ROW and one-third (1/3) appraisal value for the General Utility Easement. Permissible uses described in the contract in my Offer Letter
for the easement began "for the purpose of construction, maintenance, repair, and/or replacement, enlargement and operations of a roadway..”
The first permissible use for this larger "General Utility Easement" I was
offered 1/3 appraisal value is to build a road. This is the same use as the other smaller ROW “taking” I was offered full
appraisal value for.
Many municipalities, including most
of Fayetteville's regional neighboring towns, have chosen to offer their residents the same full appraisal value reimbursement for easements. Three experienced, professional appraisers told me the MARKET is clear on takings. Whether a specific piece of land is still on a property owner's tax records such as a standard easement or not as in a ROW “full taking” is not important. The factor as to who receives
financial benefit from a piece of property is who ultimately CONTROLS it. If the city can access, dig, & plant on the property as they wish (green spaces controlled through easements) or pave it when they want (sidewalks), that property is NOT an asset to the property owner and does NOT offer any monetary worth to the property owner. In fact such “partial takings” frequently make the remaining property LESS valuable because of their proximity and how the easement is judged to impact the remaining property. This was explained to me by professional real estate appraisers but is also common sense.
Are you aware that Fayetteville is
presently writing most of their contracts for easements offering less than current appraisal value to the effected property owner? Our city is NOT operating as many surrounding towns do. In the 37 recent property takings along Cato Springs Rd. the city offered ONE THIRD (1/3) the currently appraised value for any ”General Utility Easements” taken.
Several local
attorneys who are experienced in
eminent domain land use law in northwest AR advised me to reject this 1/3 appraised value in my contract. They said the city's current legal team will initially defend this practice but will NOT choose to litigate it at trial because they know they will lose. I was told the standard procedure involves observing the preparation for trial with the defendant
spending thousands of dollars on a new (& expensive) "dual before & after takings” appraisal, the enormous legal fees, pretrial evidence collection, and preparing expert witness testimony. If properly prepared and
once all the complex legal hurdles have been cleared, the city's attorney THEN calls the property owner just prior to trial and settles offering the “Jusr Compensation” due them by law. This practice is
currently being employed by the city.
Other towns & cities out of “respect” for their citizens
initially choose to "honorably" offer full appraisal value as “Just Compensation” for easement takings from their property owners rather than wait until
it is demanded.
This doesn't even address Fayetteville's listing road construction as a permissible use for this taking in my and my neighbors' contracts when honestly it should be described as a ROW taking. The property owners clearly should receive full appraisal value "Just Compensation". This practice is nothing short of unscrupulous.
And when I drew this permissible use description of "roadway" construction within the city's contract to the city's land
acquisition officer in the summer of 2010 her reply after a long silence was, "We just made a mistake writing your contract."
Am I expected to accept this explanation when my neighbors' contracts have the same “mistaken” but properly worded, legal description of “roadway” construction within their contracts as well? I wonder how many of the hundreds of other eminent domain contracts that the city has negotiated with its citizens contain this same “mistake” and were successfully negotiated by the city's legal team and signed as “mistakenly” written?
This is just the tip of the iceberg. There were serious miscalculations and errors in the city's engineering plans for this "corridor enhancement" and totally unnecessary road construction project. And the disrespectful manner that the city negotiated with several of my elderly neighbors was ugly to observe.
This material &
more will soon be posted to Fayette Junction Cottonwood Tree FaceBook page along with document photos. Watch the FaceBook page & associated new webpage, reformfed.org as they develop.
Thank you, david druding
