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Effectiveness and Risks of "Quick Take" Ability

The State of Washington Department of Transportation requested a survey of the other states regarding the "Quick Take" ability.

  1. Does your state have the ability of "Quick Take?"

  2. If you do, how effective is it?

  3. Are there any pitfalls or dangers that we might try to avoid if we seek amendments to our statutes to allow it?

ALABAMA

I'm not certain I ever understood what "quick take" means to all the states. We do have a step in all of our condemnations before going to a full blown formal jury trial that we call "Probate Court." This is a more or less informal trial before a county judge with no jury. The county judge appoints three commissioners to hear the testimony and then set the purchase price. Once the commissioners set the purchase price, we can pay the money into the Probate Court and take ownership of the property even if we or the property owner appeals to a higher formal court. The total time this take varies a little from County to county and case to case but somewhere between two and one-half to four months. I'm not sure this is really that quick, but it is much quicker than it would be to have to go through the whole formal court process before we could obtain ownership. Our system is a specific part of our eminent domain code and works very well for us. The only suggestion I have is that if you are going to have any type hearing or judging process, be sure to get limiting time frames spelled out in your law or rule and regulations. It is our experience that judges or hearing officers will usually take the maximum time allowable to deal with these matters.

CONNECTICUT

  1. Yes, Connecticut enjoys a "quick take". A copy of the statute is attached.

  2. It is very effective. The State takes the property needed while the amount of damages is worked out either administrative or through the court.

  3. I can't think of any pitfalls.

DELAWARE

Delaware does not have quick take authority.

IDAHO

  1. Idaho has a quick take statute

  2. It is fairly effective allowing ITD to acquire property well ahead of the time disputed cases would otherwise be resolved.

  3. The pitfall is that due to criminal cases taking precedent on court calendars the statutory time frame for courts to conduct possession hearings within 21 to 30 days of service of summons cannot be met. On average it takes 90 to 120 days from the date of summons before cases are heard. All possession hearings must proceed through court rather than a more expeditious administrative process that some states employee.

ILLINOIS

  1. Illinois does have quick-take for IDOT highway projects.

  2. It is very effective for us, as it allows us to move to secure all R.O.W. in a timely fashion. Because we also have a statutory prohibition on awarding any construction contract until we hold title to all property interests needed for that contract, it is key to our ability to keeping to construction letting schedules. When we go to court seeking quick-take we must prove necessity and in most cases that means the project is published and construction is funded in our annual highway program.

  3. I would say the biggest concern is the belief that quick-take diminishes the department's effort to negotiate in good faith prior to filing in court. We have a statutory requirement to provide the property owner with a 60-day written notice of our intent to file and to continue negotiation up to filing. Another problem that comes up is local public agencies without quick-take trying to incorporate the department into a project in order for us to use quick-take to secure all R.O.W. We need to be diligent in not abusing its use. LPA's can secure quick-take on project and time limited basis by legislative action, but it is cumbersome

MAINE

  1. Yes.

  2. It is very effective. The Title is obtained upon recording order of taking (follows negotiation). The payment of damages (pro tanto if no final agreement) is made to owners within 60 days of recording. The Owner can file suit within three years to challenge the damage award.

  3. There is a risk that final damage determination can significantly exceed the appraised amount used for determination of pro tanto, and may not be known for several years. There can also be significant interest due on any new money received as a result of judgment. My sense is that the three-year statute of limitations is too long, but it is unlikely to be changed. I also suggest caution on methodology used to establish interest.

MINNISOTA

  1. Yes, as follows:

    117.042 Possession.

    Whenever the petitioner shall require title and possession of all or part of the owner's property prior to the filing of an award by the court appointed commissioners, the petitioner shall, at least 90 days prior to the date on which possession is to be taken, notify the owner of the intent to possess by notice served by certified mail and before taking title and possession shall pay to the owner or deposit with the court an amount equal to petitioner's approved appraisal of value. Amounts deposited with the court shall be paid out under the direction of the court. If it is deemed necessary to deposit the above amount with the court the petitioner may apply to the court for an order transferring title and possession of the property or properties involved from the owner to the petitioner. In all other cases, petitioner has the right to the title and possession after the filing of the award by the court appointed commissioners as follows:

    1. if appeal is waived by the parties upon payment of the award;

    2. if appeal is not waived by the parties upon payment or deposit of three-fourths of the award. The amount deposited shall be deposited by the court administrator in an interest bearing account no later than the business day next following the day on which the amount was deposited with the court. All interest credited to the amount deposited from the date of deposit shall be paid to the ultimate recipient of the amount deposited.

    Nothing in this section shall limit rights granted in section 117.155.

    HIST: 1971 c 595 s 6; 1975 c 218 s 1; 1976 c 72 s 1; 1978 c
    674 s 60; 1981 c 8 s 1; 1Sp1986 c 3 art 1 s 82

  2. If you do, how effective is it?

    It is very effective. It is heavily relied upon and used regularly.

  3. Property rights advocates may oppose it.

MISSISSIPPI

  1. Yes.

  2. It takes about 4-6 months to gain right of entry to a parcel from the time the negotiator condemns the property. It depends on the particular court.

  3. Your statute must provide the owner opportunity for hearing prior to the court ordering that the title passes to the department in order to comply with due process requirements of the Constitution.

NEBRASKA

  1. Yes

  2. Very effective, in fact, indispensable. I can't imagine running an effective ROW acquisition program without the ability to take possession without the owner's agreement. Some of my owners would NEVER agree to allow possession.

  3. I think our statutory process is great. The county judge appoints a three person board of appraisers and sets a hearing date. At the informal, non-judicial hearing both sides present their evidence and the board enters an amount as just compensation. Once we've deposited that amount with the court, we have the right of possession by statute. Couldn't be simpler.

NEW HAMPSHIRE

NH does not have the ability of "Quick Take."

NEW JERSEY

New Jersey has no ability to do quick takes. All acquisitions must be accompanied by bona fide negotiations, prior to the vesting of title by agreement or condemnation.

NORTH DAKOTA

  1. North Dakota has a quick take process to acquire property for right of way. Quick take allows the state to take immediate possession of the property after making a formal offer and then depositing the amount of the offer with the clerk of district court in which the property is located. The clerk of district court must notify the landowner of the deposit. If the landowner wishes to dispute the taking of the property or the amount of the offer, the landowner has 30 days to appeal to the district court.

  2. This process is very effective.

  3. There are no pitfalls as far as I am concerned.

OHIO

  1. Ohio does have quick take authority. I don't know how we would be able to clear our projects in a timely manner without it.

  2. Possession vests with ODOT with service of our appropriation petition on vacant land and after 60 days on structured parcels. It is very effective.

  3. I do not know of any pitfalls associated with it.

PENNSYLVANIA

No we do not.

VIRGINIA

  1. Yes, Virginia has and uses quick take.

  2. We could not keep anything on schedule or construct anything. Virginia's system revolves around Quick Take.

  3. Owners do not like it as they can't delay a project. Agents are faced with hostile owners on occasion.

WASHINGTON

No.

Updated: 09/05/2014
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