MML more shocking propoganda re: Citizens Rights

MISSOURI MUNICIPAL ATTORNEYS ASSOCIATION
2009 SUMMER SEMINAR
Tan-Tar-A
July 18, 2009
ROUND THREE !!!
2009 “CPR” CONSTITUTIONAL AMENDMENTS:
EMINENT DOMAIN OR SLUMLORDS’ BILL OF RIGHTS?
TEMPLATE RESOLUTION/POLICY:
“BEST PRACTICES” PROCEDURES IN
EMINENT DOMAIN FOR REDEVELOPMENT
􀃔 􀃔 􀃔
PREPARED AND PRESENTED BY:
THOMAS A. CUNNINGHAM, ESQ.
CUNNINGHAM, VOGEL & ROST, P.C.
legal counselors to local government
75 W. LOCKWOOD, SUITE ONE
ST. LOUIS, MISSOURI 63116
314.446.0800
tom@municipalfirm.com
www.municipalfirm.com
NOTICE & DISCLAIMER
These seminar materials and the related presentation are intended for discussion purposes and to provide those
attending the seminar with useful ideas and guidance on the topics and issues covered. The materials and the
comments of the presenters do not constitute, and should not be treated as, legal advice regarding the use of any
particular technique, device or suggestion, or its legal advantages or disadvantages. Although we have made every
effort to ensure the accuracy of these materials and the presentation, neither the attorney presenting this seminar nor
Cunningham, Vogel & Rost, P.C. assumes any responsibility for any individual’s reliance on the written or oral
information presented. All rights reserved.
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LIMITED PURPOSE OF TEMPLATE RESOLUTION/POLICY:
The policies contained in the attached template Resolution are intended solely as guidelines for
those communities seeking to formalize a procedure for considering the use of eminent domain
for economic development and redevelopment projects and areas. The template reflects certain
“Best Practices” Procedures, some of which were recommended in 2005 by the Missouri Eminent
Domain Task Force (“EDTF”). (References in the template are to enumerated “EDTF Action
Items.”)
The procedures contained in the template are intended to apply only to a limited “subset” of
eminent domain issues involving (1) permanent acquisitions of (2) fee interests in real property (3)
for redevelopment purposes. (These policies/procedures do not apply to temporary acquisitions,
acquisitions of property interests less than fee (e.g., easements, rights-of-way), or to acquisitions of
any property interest for any purpose other than economic development and redevelopment (e.g.,
public works, parks and recreation, utilities, etc.).
The policies and procedures offered are themselves, however, guided by three basic principles:
• Eminent Domain determinations are and should remain issues of local (not state-wide)
concern and should be responsive to local concerns and dynamics;
• Any such procedures should seek to balance public necessity with individual property
rights through a process perceived by the local community as fundamentally fair with the
primary objective of reducing potential for controversy and conflict;
• Resolution of conflicts that may arise in the context of developing such policies and any
remedial responses should involve the political, not the judicial process.
With this in mind, the presenters are not advocating wholesale adoption of the template
Resolution, but rather encouraging such communities and practitioners as may be interested to
consider relevant portions of the template as starting points to be modified and adapted as the
individual communities’ needs dictate.
RESOLUTION NO. __________
A RESOLUTION ADOPTING A POLICY TO APPLY CERTAIN “BEST
PRACTICES” PROCEDURES IN CONNECTION WITH THE EXERCISE
OF EMINENT DOMAIN FOR REDEVELOPMENT PURPOSES.
WHEREAS, Chapter 523 of the Revised Statutes of Missouri, as amended, entitled
“Condemnation Proceedings” (“Chapter 523”) governs the authority of the State of Missouri and
its political subdivisions, public corporations, and public authorities to exercise the power of
eminent domain by establishing standards and procedures as minimum requirements for any such
exercise; and
WHEREAS, the City of _________________, Missouri (the “City”) has determined
that, in connection with the permanent acquisition by or in the name of the City of real property
related to redevelopment activities, it is appropriate and in the public interest that a policy be
adopted to announce certain standards and procedures intended to balance public necessity with
individual property rights through a process perceived by the community as fundamentally fair;
and
WHEREAS, the governing body of the City now wishes to adopt a policy providing for
application in connection with such acquisitions of certain eminent domain “best practices” that
are intended to supplement the standards and procedures of Chapter 523 when exercised for
redevelopment purposes;
NOW, THEREFORE, BE IT RESOLVED BY THE [BOARD OF
ALDERMEN/CITY COUNCIL] OF THE CITY OF ____________, MISSOURI as follows:
Section 1. That the following policies and procedures for the application of certain “best
practices” in connection with consideration of acquisitions of parcels for redevelopment
purposes to be undertaken by or under authority of the City are hereby adopted and approved:
I. Purpose and Scope.
(A) The [Board of Aldermen/City Council] of the City hereby finds and
determines as follows that:
(i) the acquisition of interests in real property for public purpose through the
exercise of eminent domain, particularly when the property interest is to be
acquired in furtherance of redevelopment objectives, but will not be directly
owned or primarily used by the general public, poses unique issues and concerns
and has potential to engender significant controversy;
(ii) although eminent domain remains an essential tool to achieve local
redevelopment objectives, this authority must be exercised sparingly and, if and
when exercised, should preserve a balance between public necessity and
individual rights in property through a process perceived by the community as
fundamentally fair to all affected parties;
(iii) the City should act therefore as a good steward of eminent domain
authority, assuming responsibility for achieving a balance of interests and
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maintaining fundamental fairness in the consideration of any exercise of eminent
domain; and
(iv) in light of the foregoing, the City intends to diligently apply the policies
and procedures set forth herein with the understanding that inadvertent failure to
apply the policies and procedures in a specific instance shall not invalidate the act
or acts undertaken, so long as such act or acts comply with applicable law.
(B) The policies and procedures set forth herein are intended to apply only to
those permanent acquisitions of fee interests in real property by or in the name of the
City:
(i) that relate to the elimination of blighted, substandard, or unsanitary
conditions, or conditions rendering the property to be acquired, or its surrounding
area a conservation area, or to any similar redevelopment purpose authorized by
law; or
(ii) when the property to be permanently acquired will not be directly owned
by the City or a governmental entity or agency; or
(iii) that are conveyed within three (3) years following acquisition by the City
or a governmental entity or agency to a private individual or a for-profit entity
(collectively, “Redevelopment Acquisitions”).
(C) These policies and procedures are intended to provide guidance and to
facilitate full, open and timely communication with and among all interested parties in
connection with Redevelopment Acquisitions with the primary objective of reducing
potential for controversy and conflict. Accordingly, nothing in these policies and
procedures or their application either generally or in specific instances is intended to or
shall be deemed to create a cause of action or claim against the City or any other
interested party.
(D) These policies are not intended to and shall not apply to any temporary
acquisition, acquisitions of property interests less than fee (e.g., easements, rights-ofway),
or to any acquisition of any property interest for any purpose other than a
Redevelopment Acquisition (e.g., public works, parks and recreation, utilities).
II. Initial Determinations; Notice and Public Hearing; “Plain Language”
Summary of Process.
(A) As part of the consideration of any proposed exercise of eminent domain
for any Redevelopment Acquisition, the [Board of Aldermen/City Council] should
determine and identify:
(i) each property to be acquired in fee and location or each such property by
street name or other sufficiently specific description; and
(ii) the use or uses intended to be made of the property to be acquired and the
persons or entity that will hold title to the acquired property after
redevelopment.
(B) Prior to the approval of any Redevelopment Acquisition, the [Board of
Aldermen/City Council] should provide for public comment on the proposal by holding a
public hearing after giving notice to the public and to those owners of record of property
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to be acquired in fee (each an “Original Owner”). The notices provided should include
the determinations called for in paragraph (A) of this section. [EDTF Action Item #1]
(C) The [Board of Aldermen/City Council] should cause to be prepared a
written, “plain language” summary of the acquisition process and the rights of property
owners under Chapter 523 of the Revised Statutes of Missouri, as amended, and should
cause a copy of such written summary to be provided to each Original Owner in advance
of the holding of any scheduled public hearing to consider a Redevelopment Acquisition.
[EDTF Action Item #2]
III. Use of Redevelopment Acquisition Consistent with Initial Determinations.
After the exercise of eminent domain in connection with a Redevelopment
Acquisition, the City should use the property so acquired for the use or uses that were
originally identified by the [Board of Aldermen/City Council]. Within a three (3) year
period following authorization of eminent domain, a use of a Redevelopment Acquisition
that is substantially different from that originally identified should be authorized by an
affirmative [two-thirds/three-fourths] majority vote of the entire [Board of Aldermen/City
Council], which vote should be a public vote or, if the acquired property is no longer
needed or suitable for the originally identified use, the Original Owner may be afforded
the opportunity to re-acquire the property at the amount of the final award in
condemnation paid by or on behalf of the City. [See EDTF Action Item #12]
IV. Exercise of Authority; Time for Filing Condemnation Action.
(A) Eminent domain for Redevelopment Acquisitions should be exercised
only in the name of the City as approved by the [Board of Aldermen/City Council].
[EDTF Action Item #10]
(B) The City should provide final authority to exercise eminent domain for
Redevelopment Acquisitions only by ordinance or resolution, and after public hearing.
Each such ordinance or resolution should identify the property to be acquired and should
contain and be informed by the following findings and determinations:
(i) that interested parties and the public have had opportunity to be informed
of, and to be heard on, the proposed exercise of eminent domain;
(ii) that the proposed use of the property is consistent with the City’s
comprehensive plan;
(iii) that the property to be acquired will be directly owned by the City or other
governmental entity; or, in the event that the property to be acquired will
not be so owned, the ordinance or resolution identifies the person(s) or
entity(ies) who will hold title to the property after redevelopment; and
(iv) that there is no other reasonable alternative to acquisition of the property
by exercise of eminent domain. [EDTF Action Item #11]
(C) In each Redevelopment Acquisition, the City should file with the circuit
court of relevant jurisdiction a petition in condemnation seeking to acquire a specific
property not later than [three (3) years] from the date the [Board of Aldermen/City
Council] adopts the ordinance or resolution approving exercise of eminent domain. [See
EDTF Action Item #14]
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V. Redevelopers.
(A) In each Redevelopment Acquisition in which the property to be acquired
will not be directly owned by the City or other governmental entity, the [Board of
Aldermen/City Council] should require written assurances that the person(s) or entity(ies)
who will hold title to the property after redevelopment (the “Redeveloper”):
(i) has demonstrated to the City’s satisfaction that the Redeveloper has
considered alternative sites or locations and that the property to be
acquired reasonably represents the minimum necessary to achieve the
goals of an approved redevelopment plan; [EDTF Action Item #11]
(ii) has provided adequate security for payment of all estimated condemnation
costs including awards, fees and relocation costs; pre-condemnation
damages; and damages in the event of abandonment of condemnation; and
(iii) to the extent feasible under an approved redevelopment plan, has made a
good faith offer to businesses or residents displaced by the Redevelopment
Acquisition of an opportunity to relocate within the area to be redeveloped.
(B) In the event that multiple properties are required to assemble land for
redevelopment, the City may additionally require that before authorization of eminent
domain, the Redeveloper has obtained control over at least [seventy-five percent (75%)]
of the total land area or total number of properties comprising the area to be redeveloped
by negotiated purchase.
(C) In connection with authorization of eminent domain for a specific
Redevelopment Acquisition, the City should additionally consider in applicable
circumstances whether the Redeveloper has provided for:
(i) determinations of value by independent appraisal;
(ii) inclusion of payment of business interruption costs as a relocation cost;
(iii) determination and payment of compensation based upon the true cost of
replacing such property with a comparable property and taking into
consideration, as applicable:
(a) the location of the acquired property;
(b) the school district in which acquired property lies;
(c) physical characteristics of the acquired property (e.g., acres, area,
number of bedrooms, etc.); and
(d) any other relevant characteristics of the acquired property which
bear on the true cost of replacement as of the date of the award in
condemnation; and
(iv) payment of compensation for any uncompensated rental interests acquired
or displaced as a result of the acquisition of property by eminent domain.
VI. Abandonment of Project; Opportunity to Repurchase; Expenses in Advance
of Award.
(A) If any project approved pursuant to an approved redevelopment plan in
which a Redevelopment Acquisition has been authorized and acquisition completed is
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abandoned, for any reason, the City should promptly notify all Original Owners of
acquired properties and may provide an opportunity for each such Original Owner to
repurchase the property acquired.
(B) Other than as provided by applicable law, any cost or expense incurred by
any party affected by the exercise of eminent domain in advance of a commissioners’
award in condemnation, shall be solely the responsibility of such party.
VII. Redeveloper’s Prompt Payment of Condemnation Award.
(A) Prior to approving a Redevelopment Acquisition in which the property to
be acquired will not be directly owned by the City or other governmental entity, the City
should require that the Redeveloper pay the commissioners’ award into court promptly,
and in the event of unreasonable delay or failure by the Redeveloper to pay the
commissioners’ award into court that the Redeveloper indemnify and hold the City
harmless from all damages, costs and expenses required to be paid.
(B) Any written agreement between the City and the Redeveloper may include
provisions that Original Owners are entitled to the prompt payment of the
commissioners’ award into court.
Section 2. That his Resolution shall take full force and effect from and after the date of its
passage and approval as provided by law.
APPROVED BY THE [BOARD OF ALDERMEN/
CITY COUNCIL] OF THE CITY OF
____________________________, MISSOURI
__________________________
____________________, Mayor
Date: _____________________
Attest:
___________________________
_________________, City Clerk