EMINENT DOMAIN by lifemate


									                                Right of Way Costs
Update - NC

                                   Requested by: Maryland
                              Survey Deadline: February 12, 2007

   The Maryland State Highway and Transportation Department would like to send the
   following questions out to all the state DOT's. A response is requested by February 12,

      1. Has your state increased their reestablishment expenses eligibility above the
         statutory limits in 49CFR? If so, what is the new amount?

      2. Has your state increased their fixed payment eligibility above the statutory limit in
         49CFR? If so, what is the new amount?

      3. Do you have provisions in place to compensate displaced businesses for "loss of
         goodwill"? Do you also compensate for "loss of goodwill" for partial acquisitions?
         If you pay for loss of goodwill, can you estimate the average yearly increase to
         your right of way costs? Please forward any pertinent language regarding loss of
         goodwill currently in your state law.

      4. Does your agency have any provisions to reimburse property owners for
         professional fees (i.e. attorney, engineering or appraisers' fees) in condemnation
         cases? How long has this provision been in place? If your agency pays these
         fees, and it was put in place within the past 10 years, what has been the affect in
         the increase of cases that go to trial and the increase in costs to your r/w
         program as a result?


   1. No.

   2. No.

   3. No.

   4. No.


1. No.

2. No.

3. No.

4: We are only obligated for attorney fees if we loose the case.



Unfortunately, staff have not been available to answer questions 1 & 2. However, there
may have been an earlier response to similar questions given to our FHWA
representative as part of a prior AASHTO survey.

3. 1263.510.

    (a) The owner of a business conducted on the property taken, or on the
        remainder if the property is part of a larger parcel, shall be compensated for
        loss of goodwill if the owner proves all of the following:

         (1) The loss is caused by the taking of the property or the injury to the

         (2) The loss cannot reasonably be prevented by a relocation of the
             business or by taking steps and adopting procedures that a
             reasonably prudent person would take and adopt in preserving the

         (3) Compensation for the loss will not be included in payments under
             Section 7262 of the Government Code.

         (4) Compensation for the loss will not be duplicated in the compensation
             otherwise awarded to the owner.

    (b) Within the meaning of this article, "goodwill" consists of the benefits that
        accrue to a business as a result of its location, reputation for dependability,
        skill or quality, and any other circumstances resulting in probable retention of
        old or acquisition of new patronage.

    (c) If the public entity and the owner enter into a leaseback agreement pursuant
        to Section 1263.615, the following shall apply:

         (1) No additional goodwill shall accrue during the lease.
       (2) The entering of a leaseback agreement shall not be a factor in
           determining goodwill. Any liability for goodwill shall be established
           and paid at the time of acquisition of the property by eminent domain
           or subsequent to notice that the property may be taken by eminent

       (See attached file: AASHTO Survey Loss of Goodwill.xls)

       AASHTO Survey Loss
         of Goodwill.xls

4. Under CCP code 1033; 1033.5; 1235.140; 1250.410; and 1263.510, the State only pays
   professional fees when litigation expenses are determined by the Court. In the
   instances when the State pays these fees it has been determined by the Court that the
   Final Offer of Compensation was unreasonable.




                                DISTRICT OF COLUMBIA





1. No.

2. No.

3. No, Idaho does not pay "loss of goodwill" in relocation or for partial acquisitions.

4. The Idaho Transportation Department does not automatically pay professional
   service fees prior to condemnation action. In condemnation proceedings, if the
   Court awards greater than 10% above the most recent settlement offer made by the
   State, all attorney's fees and costs are paid by the State. This department policy has
   been in affect for over 10 years.

1. Illinois has not considered increasing the statutory limit set forth in 49 CFR Part 24.

2. No.

3. No.

4. There are no such provisions; however, recently enacted eminent domain law, which
   was legislated in response to the U.S. Supreme Court’s Kelo decision, requires,
   among dozens of other provisions, the Department to pay such fees if the
   Department exercises its eminent domain authority for a private purpose (that is, it
   subsequently conveys the property or leases the property to a private party). We
   expect that this new provision to the law would affect the Department when we
   purchase functional replacement property when we must relocate railroads or public
   utilities. We do not anticipate other fees when condemning land for our highway

     The new law took effect January 1, 2007. The brief interim since enactment hasn’t
     allowed for analysis of any increase to litigation or costs.


1. No.

2. No.

3. No. NA

4. Attorney’s fees only. Not professional witness fees. 40+ years. Attorney fees limit
   increased in May, 2006 from $2500 to $25,000. Cost is undetermined as yet. New
   limit increases pressure to make pre-trial settlements on lower value takings.




1.   No. $10,000 is still the maximum

2. Yes. The old was $400 for first room, with $150 for each additional room. The new
   is $450 for the first, with $170 for each additional room.

3. Under Kentucky law this item is Non-compensable.

4. Kentucky law does NOT allow us to pay for any professional fees.

1. No. Maximum Reestablishment Expense eligibility is $10,000.00.

2. No. Maximum In Lieu payment is $20,000.00.

3. We pay for business loss, which would include goodwill, if the property owner can
   prove it. Voters in Louisiana recently passed a constitutional amendment which
   states: "Except as otherwise provided in this Constitution, the full extent of loss shall
   include, but not be limited to, the appraised value of the property and all costs of
   relocation, inconvenience, and any other damages actually incurred by the owner
   because of the expropriation." We are going to let the courts determine what
   "inconvenience" encompasses.

4. We pay the property owner's attorney fees up to 25% of the excess award (this is
   statutory) and reasonable expert witness fees for the property owner's experts.
   These amounts are usually determined by the Court after trial. These provisions
   have been in place in excess of 10 years.




1. No.

2. No.

3. Loss of "Goodwill" is not compensable in Massachusetts.

4. Massachusetts is an eminent domain state that does not reimburse for professional
   fees, but we do allow certain fees to be reimbursed as part of the (BRB) Business
   Relocation Benefit.


1. Michigan has not increased our reestablishment expenses eligibility above the
   current statutory limit of $10,000.

2. Michigan has not increased our fixed payment eligibility above the current statutory
   limit of $20,000.

3. Michigan does not have any provisions in place to compensate displaced
   businesses for "loss of goodwill" nor does Michigan compensate for "loss of
   goodwill" for partial acquisitions.
   4. Per the provisions of Act 87, Michigan P.A.1980, as amended, Michigan has been
      reimbursing property owners for their expert witness fees, including attorney fees,
      engineering fees and appraisal fees.

   I hope this helps. If you need any additional information, please feel free to call me.

Kelly Ramirez
Relocation Specialist
Real Estate Division
Michigan Department of Transportation
7050 West Saginaw Hwy., Suite 3
Lansing, MI 48917
517-373-4135 (phone)
517-373-2209 (fax)


   1. Yes, the amount is set at $50,000 dollars with certain limitations in our new Eminent
      Domain law that was passed in the 2006 legislative session.

       Please see below regarding specifics of the laws reimbursement requirements.

       Due to changes in Minnesota law resulting from the 2006 legislative session,
       reestablishment relocation benefits to eligible displaced persons will vary, depending
       upon certain conditions. Those conditions include: funding associated with the
       project from which the party is displaced; the date the parcel is acquired or a
       condemnation action is commenced for its acquisition; and/or when the party
       actually vacates the displacement parcel.

       The following attempt to explain reestablishment benefits affected by this confusing
       and unfortunate condition:

          Persons displaced prior to January 16, 2007 and persons displaced from a
           non-federal-aid project on or after January 16, 2007 may be eligible for
           reestablishment benefits up to a maximum $50,000.

          Persons to be displaced who are in legal occupancy of a parcel acquired by
           the Agency prior to January 16, 2007 or included in a condemnation action
           commenced prior to January 16, 2007, may be eligible for reestablishment
           benefits up to a maximum $50,000.
          Persons to be displaced who remain in legal occupancy of a parcel acquired
           by the Agency on or after January 16, 2007 or which parcel is included in a
           condemnation action commenced on or after January 16, 2007, may only be
           eligible for reestablishment benefits up to a maximum $10,000.
       If an eligible party has moved and/or incurs eligible expenses and submits or
        executes a claim for reimbursement of said expenses on or before January
        15th, 2007, the Agency will participate in reimbursement of those submitted
        eligible reestablishment expenses, up to a maximum $50,000.
       Parcel Fee-Owners who must relocate, and whose parcels are acquired on
        or after January 16, 2007 or whose parcels are included in a condemnation
        action commenced on or after January 16, 2007, will be due compensation
        by the acquiring Agency to purchase a comparable property in the

       A party may appeal any relocation issue to the Director, Office of Land

2. No. N/A

3. Yes, but it is part of the definition of "loss of going concern" in our statutes for
   compensation purposes.

    Yes, if a partial taking would call for compensation of a loss of going concern
    resulting from destruction of the business based on it's loss of goodwill.

    The language in our statutes regarding going concern and loss of goodwill which
    could affect loss of going concern was passed in 2006, we have no cases or claims
    to date to base reliable future estimates on.

    Our statute now defines loss of "going concern " and includes " good will" in that
    definition as follows; "going concern" means the benefits that accrue to a business or
    trade as a result of its location,                  reputation for dependability skill or
    quality, customer base, good will, or any other circumstance resulting in probable
    retention of old or acquisition of new patronage; and..."

4. Yes, our legislature passed a law this last session (2006) allowing for award of
   "reasonable attorney fees, litigation expenses appraisal fees, other expert fees and
   other related costs..."

    Payment of these types of expenses to owners are criteria based, such as having
    met percentages of final judgment amounts OVER the states" last written offer of
    compensation" amount.

    We will be waiting to see what impact this has on cases and compensation amounts
    to owners this next few years as cases and claims are made.



1. No. However, MoDOT does have a project that reestablishment expenses over the
   statutory limits will be handled as an administrative settlement. This is in
   cooperation with the Missouri Division of the FHWA.
2. No.

3. No. No

4. No. However, in recent Eminent Domain legislation that was passed in 2006, ..."If
   the court does not find that good faith negotiations have occurred, the court shall
   dismiss the condemnation petition, without prejudice, and shall order the
   condemning authority to reimburse the owner for his or her actual reasonable
   attorney's fees and costs incurred with respect to the condemnation proceeding
   which has been dismissed..." Also, ..."If a condemning authority abandons a
   condemnation, each owner of interest sought to be condemned shall be entitled to

    1) Their reasonable attorney's fees, expert expenses and costs: and
    2) The lesser of:
       a) The owner's actual damages accruing as a direct and proximate result of the
          pendency of the condemnation if proven by the owner; or
       b) The damages required to be paid to an owner in the event of an
          abandonment under the terms of the applicable redevelopment plan or

   The above stated legislation has been in place for approximately 1 month.

   MoDOT has not incurred any increased costs to date as a result of a dismissal of a
   condemnation petition or an abandonment as described above.



1. No

2. No

3. Nebraska has no provisions to pay for loss of goodwill.

4. If we appeal the initial Board of Appraisers determination to District Court and fail to
   reduce the award by 15% we must pay attorney's fees and expert witness fees.
   Likewise, if the owner appeals and raises the award by 15% we must pay fees. This
   provision has been in place for the many years so there is no way to measure an
   increase in costs.


                                   NEW HAMPSHIRE

1. Yes, 100K

2. No
3. No

4. NH reimburses up to $1000.00 for a impacted property owner to hire their own
   appraiser, 4 years+-, I believe compensating for an owner appraisal has reduced the
   number of condemnation cases.

                                   NEW JERSEY

1. No

2. No

3. No (at least for now anyway).           There is currently a raft of proposed
   redevelopment/eminent domain legislation in answer to the Kelo Case. Much of this
   legislation has payments for items such as business losses & goodwill. We're doing
   everything we can to see that none of this migrates over to the traditional uses of
   eminent domain for transportation purposes and the like.

4. No (although same situation as noted above).

                                   NEW MEXICO

                                     NEW YORK

                                 NORTH CAROLINA

1. No

2. No

3. No

4. No

                                  NORTH DAKOTA

1. Yes. $25,000

2. Yes. $40,000

3. No.

4. No.

1. We have not increased the cap above $10,000 on re-establishment.

2. We have not increased the fixed payment eligibility above $20,000.

3. We do not compensate for "loss of goodwill".

4. We do not reimburse property owners for professional fees in condemnation cases.


1. Due to a ruling by the Oklahoma Supreme Court, reestablishment expenses are only
   limited to that which is reasonable & necessary in order to reestablish the business.

2. No.

3. No.

4. Yes, in some cases. The current statutes allow for the property owner to receive
   payment for attorney's fees & expert witness fees should the jury verdict exceed the
   commissioner's award by more than 10%. That provision of law has been in place
   for more than ten years.



1. Yes.  Pennsylvania has increased business reestablishment expenses to a
   maximum of $12,000.

2. The business “fixed payment” is now a minimum of $3,000 and a maximum of
   $60,000 and it is no longer “in lieu of” the other payments. It is an additional

3. Pennsylvania does not compensate businesses for “loss of goodwill”.

4. Pennsylvania does not pay additional appraisal, attorney & engineering fees in
   condemnation cases.

                                    PUERTO RICO

                                   RHODE ISLAND
                                  SOUTH CAROLINA

1. South Carolina currently uses the Federal maximum of $10,000 for reestablishment
   expenses. We have proposed an increase to $50,000 which has been included in a
   proposed eminent domain bill currently in the Judiciary Committee.

2. This fixed payment has not been increased.

3. We do not provide compensation for loss of goodwill.

4. Our eminent domain statues were last revised in 1987. Under the 1987 statue,
   SCDOT only pays for the landowners attorney and experts if the landowner prevails
   at trial. Prevails means that the landowner receives greater than 50% of the
   difference between SCDOT's highest value testified to at trial and the landowner's
   highest valuation testified to at trial.

                                   SOUTH DAKOTA

1. No.

2. No.

3. No.

4. If the jury award is 20% or more than the State's highest and best offer the property
   owner is entitled to attorney fees and expenses for up to two expert witnesses.




1. UDOT has not yet raised the limit for reestablishment expenses eligibility, however,
   a bill has been proposed to the state legislature which, if passed, will raise the limit
   to $50,000. (See SB 187).

2. UDOT has not yet raised the limit for the "fixed payment" eligibility, however, a bill
   has been proposed to the state legislature which, if passed, will raise the limit to
   $75,000. (See SB 187).

3. No. UTAH does not have any provisions in the state code to allow compensation for
   the "loss of goodwill".

4. UDOT does allow agencies to pay for second appraisals.           (Since 1994, or so).
   Please see Utah Code Section: 57-12-14.
                  57-12-14. Dispute resolution - Additional appraisal.

(1) If the agency and the private property owner or displaced person disagree on
    any issue arising out of this chapter, the private property owner may submit
    the dispute for mediation or arbitration according to the procedures and
    requirements of Section 63-34-13.

(2) (a)   The private property owner or displaced person may request that
          the mediator or arbitrator authorize an additional appraisal.
   (b)    If the mediator or arbitrator determines that an additional appraisal is
          reasonably necessary to reach a resolution of the case, the
          mediator or arbitrator may:

          (i) have an additional appraisal of the property prepared by an
               independent appraiser; and
          (ii) require the agency to pay the costs of the first additional

Utah does not pay for any other professional fees. We do not pay attorney fees or
fees for engineering unless the fees (for professional services) are those allowed
under moving expenses or other related expenses under 49CFR Part 24 section
24.301(g) (12) and 24.303(b).

With the assistance of the Ombudsman we have reduced the number of cases that
end up in court. Appraisals ordered by the Ombudsman's office have been cost
effective even though the agency has had to pay for them. (Average cost for a full
appraisal ordered by the ombudsman's office is about $3500 each.) Only about 2%
or so, of our grantors request the second appraisals through the ombudsman's office
and generally those are the only second appraisals UDOT pays for. It should be
noted that the ombudsman's involvement often provides secondary benefits to the
agency. When the ombudsman requests a second appraisal, we counter that
request with a suggestion that the grantor/owner should execute a voluntary Right of
Occupancy Agreement if the agency is to pay for a second appraisal facilitated by
the ombudsman. The ombudsman explains that the agency will hold off on the filing
of a condemnation action pending receipt of the second appraisal if the owner will
agree to voluntary occupancy by the agency. This is an effective way for the agency
to obtain occupancy while we wait to settle valuation issues. Following the receipt of
the second appraisal, with the assistance of the ombudsman, the agency is much
more likely to negotiate a reasonable settlement out of court.


1. The reestablishment expenses for the State of Virginia are $25,000.

2. The State of Virginia has increased the fixed payment in lieu of actual expenses to

3. The State of Virginia does not pay for loss of goodwill.

4. There is a State statute in the Virginia Code effective July of 2006 wherein the court
   in condemnation may order the petitioner to pay compensation for the taking of or
   damage to the real property, an amount that is 30 percent or more greater that the
   amount of the petitioner's final written offer made not later that 60 days after the
   respondent has filed responsive pleadings. The court may order the petitioner to
   pay to the owner those (i) reasonable costs, other than attorney fees, and (ii)
   reasonable fees and travel costs for no more that three experts testifying at trial that
   the owner incurs. The requirements shall not apply to those condemnation actions
   involving easements valued at less than $10,000 and in which the petitioner filed,
   prior to July 1, 2005, a petition in condemnation.


1. Yes, the Washington State Department of Transportation increased the statutory
   maximum to $50,000.00 in July of 2003.

2. No, we have not increased the fixed payment but wish we would have increased this
   amount to $50,000.00 at the same time we passed legislation for the increase in
   reestablishment expenses.

3. No, loss of goodwill is not considered an eligible reimbursable expense in the state
   of Washington, per WAC 468-100-301(8)(c).

4. Yes, the statute that applies has been in place for over 20 years and can be found in
   RCW 8.25.070 - Award of attorney's fees and witness fees to condemnee-
   conditions of award. Here is the link -


                                    WEST VIRGINIA


1. No, the reestablishment limits have not been increased, Wisconsin has a Business
   Replacement Payment. $50,000/Owner, $30,000/Tenant

2. The Fixed Payment Limit has not increased above the limit set by the Feds.
3. No.

4. Yes, but only as part of litigation and only when the decision comes in at more than
   15% above the State's highest written offer. Since the mid-70's. Our statistics show,
   on average, that the State condemns about 7% of our parcels and that of those 7%,
   about 35-40% are appealed. In other words, only 2-3% of our acquired parcels are
   actually appealed. However, our litigation administrative costs (not including the
   increase in compensation) have been about $1.5M/yr. in the past 5 years. If you
   include compensation increases, our litigation costs have ranged from $5-$8M in the
   past 5 years.


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