City Council has voted twice this year to authorize the use of eminent domain to buy property for its city center.
While the city has caught flack from critics for authorizing eminent domain to take property, City Attorney Wendell Willard explained that the process allows for a less confrontational resolution.
Each time, City Council members have said they’d like to reach a deal before the eminent domain authorization reaches a courtroom.
Willard, who is also a representative in the state General Assembly, said authorizing eminent domain sets in motion a legal process that gives both sides a chance to avoid litigation. Willard said eminent domain has a variety of uses.
“The city is vested with the authority and power under the constitution to exercise the power of eminent domain,” he said. “It can be done for roads, water utilities, sidewalks and for public buildings and parks, so we have the ability when necessary to ask the council to issue a resolution exercising that power.”
So far, the city has authorized the use of eminent domain for a Sherwin Williams store located at 245 Johnson Ferry Road and for 6224 Roswell Road, currently home to Makara Mediterranean Restaurant. The owners of the Sherwin Williams asked for more time to reach an agreement, and the city said legally the owners have a minimum of 30 days.
Willard has been the city’s point person on many of the negotiations for property around its proposed city center, a 14-acre block north of I-285.
He gave a step-by-step description of what happens once City Council approves a resolution authorizing the use of eminent domain:
Step 1) There’s an automatic 30-day waiting period after the city authorizes the use of eminent domain. “The purpose of that is to allow the parties to continue negotiations and discussions to resolve the matter,” Willard said. If that doesn’t happen, the city moves to the next step in the process.
Step 2) The city files a condemnation action in Superior Court. The case will be assigned to a judge.
Step 3) The court will appoint an attorney to serve as “special master” to hear testimony and evidence about the property the city wants to buy. The special master can also hear evidence about whether the city has the right to use the power of eminent domain.
Step 4) The special master reports findings to the court, but the report only deals with the property values. “He will make a determination based on the evidence presented by all sides as to what is considered by him to be just and adequate compensation for the property of interest being acquired,” Willard said.
Willard said that property owners have up to 90 days to vacate the property after the special master makes a determination.
Step 5) The judge enters an order requiring the governing body, in this case the city, to turn over the money offered for the property to the court. Upon payment, the city would receive title to the property. However, the case does not end there as far as the value of the purchase.
Step 6) Property owners can appeal the special master’s determination of value, but nothing can stop the city from using eminent domain to acquire property, Willard said. “Now assume one or both parties is dissatisfied,” Willard said. “They will have 10 days to file a notice of appeal of that decision from the entry of the order by the court.” The process slows down, but owners have a right to a jury trial.
Willard said the city would prefer to avoid using eminent domain if at all possible.
“We’ve been trying to work with these various parties over a period of many months to come to a decision to sell the property to us without this action, but in some cases we’re having to do it,” Willard said.