April 18, 2006 |
2006-R-0301 | |
COMPARISON OF EMINENT DOMAIN BILLS | ||
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By: Christopher Reinhart, Senior Attorney | ||
You asked for a comparison of the four eminent domain bills voted out of committee this session.
SUMMARY
The Planning and Development Committee approved two bills on the topic of eminent domain: sSB 34 (File 260) and sHB 5038 (File 303). The Judiciary Committee also approved two bills on this topic: SB 665 (File 454) and HB 5810 (File 504).
These bills make a number of different changes. Two prohibit certain uses of eminent domain: HB 5810 prohibits eminent domain for municipal development projects and manufacturing assistance act projects and SB 665 prohibits eminent domain solely to increase tax revenue for municipal development projects.
Each bill makes some procedural changes to either or both chapter 130 on redevelopment plans and chapter 132 on municipal development plans. These include changes to municipal legislative body approval requirements and planning requirements.
Three of the bills increase compensation for takings under the redevelopment chapter: sSB 34 requires compensation at 150% of fair market value if the property is used for economic development, sHB 5038 authorizes compensation above fair market value, and SB 665 requires compensation at 125% of fair market value. sSB 34 also applies its 150% compensation rule to municipal development projects.
Both sHB 5038 and HB 5810 require agencies to negotiate acquisitions before starting eminent domain actions and contain similar provisions creating an Office of Property Rights Ombudsman who can arbitrate or mediate disputes between property owners and agencies.
The bills include a number of other provisions.
1. Two bills (SB 665 and sHB 5038) authorize higher relocation payments for displaced people and businesses.
2. sSB 34 creates a right to appeal a decision to use eminent domain for a redevelopment or municipal development project.
3. SB 665 requires property taken by eminent domain for a municipal development project that is not used for its intended purpose or a public use and is later offered for sale to be first offered to the person it was acquired from.
4. SB 665 makes it an unfair trade practice for a person negotiating to acquire property to represent that he has the power to use eminent domain when he does not.
The bills contain many other provisions.
The bills primarily affect redevelopment plans under chapter 130 and municipal development plans under chapter 132. The chart below summarizes the bills and divides their provisions into three categories: changes to chapter 130 on redevelopment plans, changes to chapter 132 on municipal development plans, and other changes.
Because a number of other statutes that authorize the use of eminent domain require using the eminent domain redevelopment procedures in chapter 130, changes made to that chapter also affect these other statutes. A list of these statutes is included below.
COMPARISON
CHANGES TO CHAPTER 130—REDEVELOPMENT PLANS | ||||
Topic (statute amended) |
sSB 34 (File 260)— from Planning and Development |
sHB 5038 (File 303)—from Planning and Development |
SB 665 (File 454)—from Judiciary |
HB 5810 (File 504)—from Judiciary |
Blight (§ 8-125) |
Prohibits designating “deteriorating areas” as redevelopment areas (§ 1). |
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Indicating public use vs. economic development in plan (§ 8-125) |
Redevelopment plan must indicate if parcel's proposed use is a public use or economic development. Defines “public use” and “economic development” (§ 1). |
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Indicating acquisition process in plan (§ 8-125) |
Plan must describe parcel acquisition process (§ 1). |
Plan must describe parcel acquisition process (§ 1). |
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Posting draft plan (§ 8-127) |
Agency must post draft plan on website, if it has one, at least 35 days before hearing (§ 2). |
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Legislative body approval to acquire property (§ 8-128) |
Requires 2/3 legislative body approval for eminent domain takings and newspaper notice of approved takings (§ 2). |
Requires separate legislative body vote on each acquisition (§ 3). |
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Time limit on acquiring property (§ 8-128) |
No takings allowed five years after plan approval unless the agency submits documentation for the legislative body to determine the acquisition's necessity to the plan (§ 3). |
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-Continued-
CHANGES TO CHAPTER 130—REDEVELOPMENT PLANS | ||||
Topic (statute amended) |
sSB 34 (File 260)— from Planning and Development |
sHB 5038 (File 303)—from Planning and Development |
SB 665 (File 454)—from Judiciary |
HB 5810 (File 504)—from Judiciary |
Compensation (§ 8-129) |
Compensation for eminent domain takings equal 150% of fair market value, without considering certain factors that could increase or decrease that value, if taken for economic development. Compensation for commercial properties must include loss of good will (§ 3). |
Compensation may exceed fair market value and consider other relevant factors, including years of ownership and loss of good will (§ 4). |
Requires compensation of at least 125% of the property's fair market value (§ 3). |
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Timing of taking (§ 8-129) |
Extends, from 12 to 45 days, the minimum period that must pass after filing notice of proposed compensation before property can actually be taken (§ 4). |
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Appraisals (§ 8-129) |
Requires a state certified real estate appraiser to conduct an appraisal as a basis for the compensation, conducted according to generally accepted standards from the Appraisal Standards Board and any regulations adopted by the consumer protection commissioner (§ 3). |
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-Continued-
CHANGES TO CHAPTER 130—REDEVELOPMENT PLANS | ||||
Topic (statute amended) |
sSB 34 (File 260)— from Planning and Development |
sHB 5038 (File 303)—from Planning and Development |
SB 665 (File 454)—from Judiciary |
HB 5810 (File 504)—from Judiciary |
Court review by judge trial referees (§ 8-132) |
Requires consent of the parties before the court can appoint a judge trial referee to review a statement of compensation (§ 4). |
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Offer of Compromise (§ 8-132) |
Makes the applicant the counterclaim plaintiff for purposes of the offers of compromise, which appears to make eminent domain cases subject to the offer of compromise provisions (§ 4). |
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Appeal |
Establishes a statutory right to appeal the decision to take property by eminent domain. Prohibits agency from filing a statement of compensation until the court adjudicates the appeal. Puts the burden of proof on the municipality (§ 7). |
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CHANGES TO CHAPTER 132—MUNICIPAL DEVELOPMENT PLANS | ||||
Topic (statute amended) |
sSB 34 (File 260)—from Planning and Development |
sHB 5038 (File 303)—from Planning and Development |
SB 665 (File 454)—from Judiciary |
HB 5810 (File 504)—from Judiciary |
Definitions (§ 8-187) |
Defines “public use” and “economic development” (§ 4). |
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Indicating public use vs. economic development in plan (§ 8-189) |
Plan must indicate if the proposed use for each parcel is a public use or economic development (§ 5). |
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Indicating acquisition process in plan (§ 8-189) |
Plan must describe parcel acquisition process (§ 5). |
Plan must describe parcel acquisition process (§ 5). |
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Describing planning process and public benefit (§ 8-189) |
Plan must describe the planning process and how the project will benefit the public (§ 5). |
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Posting draft plan (§ 8-191) |
Agency must post draft plan on its website, if it has one, at least 35 days before hearing (§ 6). |
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Prohibited uses of eminent domain (§ 8-193) |
Prohibits acquiring property by eminent domain solely to increase local tax revenue (§ 1). |
Eliminates use of eminent domain to acquire property within a municipal development project area (also see CGS § 7-148 below) (§ 1). | ||
-Continued-
CHANGES TO CHAPTER 132—MUNICIPAL DEVELOPMENT PLANS | ||||
Topic (statute amended) |
sSB 34 (File 260)—from Planning and Development |
sHB 5038 (File 303)—from Planning and Development |
SB 665 (File 454)—from Judiciary |
HB 5810 (File 504)—from Judiciary |
Legislative body findings before using eminent domain (§ 8-193) |
Requires the municipal legislative body, before approving use of eminent domain, to (1) consider public and private benefits and determine that the public benefits outweigh private benefits, (2) determine the current property use cannot be feasibly integrated, and (3) determine that using eminent domain for the property is reasonably necessary for the plan's objectives (§ 1). |
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Legislative body approval vote (§ 8-193) |
Requires 2/3 legislative body approval for eminent domain takings and newspaper notice of approved takings (§ 6). |
Requires separate legislative body vote on each acquisition (§ 7). |
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Findings on value (§ 8-193) |
Requires agency to record separate findings itemizing the value of the real property and any structures and improvements on it (§ 1). |
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-Continued-
CHANGES TO CHAPTER 132—MUNICIPAL DEVELOPMENT PLANS | ||||
Topic (statute amended) |
sSB 34 (File 260)—from Planning and Development |
sHB 5038 (File 303)—from Planning and Development |
SB 665 (File 454)—from Judiciary |
HB 5810 (File 504)—from Judiciary |
Time limit on acquisition (§ 8-193) |
No takings allowed five years after plan approval unless the agency submits documentation for the legislative body to determine the acquisition's necessity to the plan (§ 7). |
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Compensation (§ 8-193) |
Compensation for eminent domain takings must equal 150% of fair market value, and the agency may not consider certain factors that could increase or decrease that value, if taken for economic development. Compensation for commercial properties must include loss of good will (§ 6). |
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Later offer for sale (§ 8-193) |
Requires property acquired by eminent domain that is not used for its intended purpose or another public use and is later offered for sale, to be first offered to the person from whom it was acquired (§ 1). |
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-Continued-
CHANGES TO CHAPTER 132—MUNICIPAL DEVELOPMENT PLANS | ||||
Topic (statute amended) |
sSB 34 (File 260)—from Planning and Development |
sHB 5038 (File 303)—from Planning and Development |
SB 665 (File 454)—from Judiciary |
HB 5810 (File 504)—from Judiciary |
Appeal |
Establishes a statutory right to appeal the decision to take property by eminent domain. Prohibits an agency from filing a statement of compensation until the appeal is adjudicated. Puts the burden of proof on the municipality (§ 8). |
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OTHER CHANGES | ||||
Office of Property Rights Ombudsman |
Creates an Office of Property Rights Ombudsman responsible in part for advising agencies, people, and organizations whose property is being taken by eminent domain. Ombudsman appointed by the governor with General Assembly's consent. Provide arbitration and mediation of disputes. Allows owners to request arbitration or mediation (§§ 10-20). |
Creates an Office of Property Rights Ombudsman responsible in part for advising agencies, people, and organizations whose property is being taken by eminent domain. Ombudsman appointed by governor with General Assembly's consent. Provide arbitration and mediation of disputes. Allows owners to request arbitration (§§ 5-14). (These provisions are similar but not identical to those in sHB 5038) | ||
-Continued-
OTHER CHANGES | ||||
Topic (statute amended) |
sSB 34 (File 260)—from Planning and Development |
sHB 5038 (File 303)—from Planning and Development |
SB 665 (File 454)—from Judiciary |
HB 5810 (File 504)—from Judiciary |
Agency negotiations |
Agencies must try to negotiate acquisitions before starting eminent domain actions and advise owners about ombudsman's mediation and arbitration procedures (§ 19). |
Agencies must try to negotiate acquisitions before starting eminent domain actions and advise owners about ombudsman's mediation and arbitration procedures (§ 12). | ||
Manufacturing Assistance Act (§ 32-224) |
Eliminates use of eminent domain by an agency to acquire property in the development plan under this act (§ 2). | |||
Municipal powers statute (§ 7-148) |
In the municipal powers statute, (1) prohibits the municipality from using eminent domain to acquire property in a municipal development plan and (2) eliminates the encouragement of private commercial development as an example of a public use or purpose (§ 3). | |||
Relocation Assistance Act (§§ 8-268 to -270) |
Requires agencies to base relocation payments on federal law if they are greater than the payments they would make under state law (§ 9). |
Increases several amounts that displaced people can recover under the act (§§ 5-7). |
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OTHER CHANGES | ||||
Topic (statute amended) |
sSB 34 (File 260)—from Planning and Development |
sHB 5038 (File 303)—from Planning and Development |
SB 665 (File 454)—from Judiciary |
HB 5810 (File 504)—from Judiciary |
Representations about the power of eminent domain |
Makes it an unfair trade practice for a person negotiating to acquire property to represent in the negotiation that he has the power to acquire the property by eminent domain when he does not (§ 2). |
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Neighborhood Revitalization Zone Act (§ 7-600) |
Specifies certain types of property that can be considered deteriorated property under the act (§ 4). | |||
Freedom of Information Act (FOIA) (§ 1-210(b)) |
Appears to exempt appraisals, estimates, or evaluations made for or by an agency regarding a condemnation from disclosure under FOIA, even after the acquisition has ended (§ 8). |
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Land value taxation (also referred to as split rate tax) (§ 12-62(b)) |
Allows towns with more than 80,000 people to tax land at a higher rate than buildings, structures, or other improvements made to the land (§ 21). |
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EMINENT DOMAIN STATUTES USING THE REDEVELOPMENT AGENCY PROCEDURES
A number of statutes authorizing the use of eminent domain require using the eminent domain procedures for redevelopment agencies. Thus, changes made by these bills to the redevelopment procedures also affect these statutes. Below is a list of these statutes.
1. A transit district can acquire property by eminent domain for its purposes, subject to approval of the legislative body of the municipality where the property is located. It can also use eminent domain to acquire certain franchises (CGS § 7-273e).
2. If the Connecticut Housing Authority is designated as a municipality's redevelopment agency, it has the same powers as a redevelopment agency. This includes the use of eminent domain with approval of the municipality's legislative body (CGS § 8-121).
3. A redevelopment agency has the powers necessary or convenient to carry out urban renewal plans and projects, including powers conferred on redevelopment agencies for redevelopment projects including eminent domain (CGS § 8-143).
4. If a municipality's legislative body finds that acquiring non-contiguous single parcels designated in a community development plan is necessary to prevent the spread of slum or blight, the municipality or the community development agency acting in its name can acquire the property. The land can be acquired under the redevelopment statutes using eminent domain (CGS § 8-169e).
5. An urban homesteading agency can recommend to the municipality's legislative body that abandoned property be taken by eminent domain (CGS § 8-169r).
6. A development agency can, with approval of the legislative body and in the municipality's name, acquire property by eminent domain within the area of a municipal development plan (CGS § 8-193).
7. A redevelopment agency acting as a housing site development agency can condemn property for the purpose of a housing and community development project (CGS § 8-216b).
8. An urban rehabilitation agency can recommend to the municipality's legislative body that abandoned industrial and commercial property be taken by eminent domain (CGS § 8-293).
9. A local or regional school district can take land by eminent domain for a public school building or a necessary addition, outbuildings, or convenient accommodation of its schools, with approval of the town's legislative body (CGS § 10-241a).
10. A municipality and its harbor improvement agency undertaking a harbor improvement project has the powers and authority, including eminent domain, granted to a municipality and redevelopment agency for redevelopment or urban renewal projects (CGS § 13b-56).
11. The public works commissioner can condemn property for the purpose of siting a regional low-level radioactive waste facility (CGS § 22a-163w).
12. Under the economic development and manufacturing assistance act, an agency implementing a develop plan can, with approval of the municipality's legislative body and in the name of the municipality, condemn property that is necessary or appropriate for the plan's project (CGS § 32-224).
13. Regarding a town house or town hall, a town can take land for (a) the site or an addition to the site that is necessary or convenient for the purpose, (b) necessary outbuildings and convenient accommodations for them, and (c) light and air for them (CGS § 48-3, CGS § 48-12 requires use of the redevelopment procedures).
14. A municipal corporation can condemn land if it (a) has the right to purchase land for its municipal purposes, (b) voted to purchase land in accordance with its charter or the statutes, and (c) cannot agree on a price with the owner. A municipal corporation can also take property within a neighborhood revitalization zone (CGS § 48-6, CGS § 48-12 requires use of the redevelopment procedures).
15. Under certain circumstances, a town selectman can condemn land for a building to protect town records against fire. Land of a religious or ecclesiastical society where a church building is erected cannot be taken without consent (CGS § 48-8, CGS § 48-12 requires use of the redevelopment procedures).
16. The state can take land for (a) the site of or addition to a state institution or courthouse; (b) an addition to the site of an institution of the state university system, vocational school, or technical college; or (c) the urban sites remediation action program. The state can also take water from a river, brook, spring, pond, or lake to supply water as the convenience and necessity of the institution require (CGS § 48-9, CGS § 48-12 requires use of the redevelopment procedures).
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