§ 45-50-13 - Eminent domain proceedings.
SECTION 45-50-13
§ 45-50-13 Eminent domain proceedings.– (a) The authority has the right to acquire any land, or any interest in it,including development rights, by the exercise of the power of eminent domain,whenever it is determined by the authority that the acquisition of the land, orinterest, is necessary for the construction or the operation of any project.
(1) The power of eminent domain shall be exercised onlywithin the boundaries of the city or town whose council established theauthority, except that any authority in existence on the effective date of thischapter shall have the power to acquire, by exercise of eminent domain, onlythe development rights, except as stated in subsection (a) (5), in the landdescribed in the tax assessor's plats for the towns of Foster, Scituate,Johnston, and Glocester, as of February 14, 1989, for the purpose of protectingthe water supply as follows:
(ii) That certain land situated in the town of Fosterdelineated as Foster tax assessor's lot 47, plat 15 consisting of 32 acres,more or less; that certain land situated in the town of Scituate delineated asScituate tax assessor's lot 147, plat 17 consisting of 5.6 acres, more or less;that certain land situated in the town of Scituate described as Scituate taxassessor's lot 60, plat 20 consisting of 5.8 acres, more or less; that certainland situated in the town of Scituate delineated as Scituate tax assessor's lot5, plat 42 consisting of 12 acres, more or less; that certain land situated inthe town of Johnston delineated as Johnston tax assessor's lot 5, plat 57consisting of 3.9 acres, more or less; that certain land situated in the townof Johnston delineated as Johnston tax assessor's lot 58, plat 57 consisting of.7 acres, more or less; that certain land situated in the town of Johnstondelineated as Johnston tax assessor's lot 6, plat 57 consisting of .4 acres,more or less; that certain land situated in the town of Johnston delineated asJohnston tax assessor's lot 7, plat 57 consisting of .4 acres, more or less;that certain land situated in the town of Foster delineated as Foster taxassessor's lot 52, plat 15 consisting of 80 acres, more or less; that certainland situated in the town of Foster delineated as Foster tax assessor's lot41A, plat 12 consisting of 9.8 acres, more or less; that certain land situatedin the town of Scituate delineated as Scituate tax assessor's lot 1, plat 38consisting of 67 acres, more or less; that certain land situated in the town ofScituate delineated as Scituate tax assessor's lot 4, plat 42 consisting of10.7 acres, more or less; that certain land situated in the town of Scituatedelineated as Scituate tax assessor's lot 251, plat 49 consisting of 129 acres,more or less; that certain land situated in the town of Scituate delineated asScituate tax assessor's lot 3, plat 47 consisting of 29.6 acres, more or less;that certain land situated in the town of Scituate delineated as Scituate taxassessor's lot 41, plat 41 consisting of 140 acres, more or less; that certainland situated in the town of Johnston delineated as Johnston tax assessor's lot17, plat 57 consisting of 45 acres, more or less; that certain land situated inthe town of Johnston delineated as Johnston tax assessor's lot 20, plat 59consisting of 55 acres, more or less; that certain land situated in the town ofScituate delineated as Scituate tax assessor's lot 15, plat 47 consisting of 9acres, more or less; that certain land situated in the town of Glocesterdelineated as Glocester tax assessor's lot 164, plat 18 consisting of 211.7acres, more or less; that certain land situated in the town of Fosterdelineated as Foster tax assessor's lot 31, plat 21 consisting of 22 acres,more or less; that certain land situated in the town of Scituate delineated asScituate tax assessor's lot 14, plat 37 consisting of 15 acres, more or less;that certain land situated in the town of Foster delineated as Foster taxassessor's lot 49, plat 15 consisting of 4.5 acres, more or less; that certainland situated in the town of Scituate delineated as Scituate tax assessor's lot35, plat 14 consisting of 57 acres, more or less; that certain land situated inthe town of Scituate delineated as Scituate tax assessor's lot 1, plat 37consisting of 16 acres, more or less; that certain land situated in the town ofScituate delineated as Scituate tax assessor's lot 5, plat 11 consisting of33.8 acres, more or less; that certain land situated in the town of Fosterdelineated as Foster tax assessor's lot 34A, plat 9 consisting of 20 acres,more or less; that certain land situated in the town of Scituate delineated asScituate tax assessor's lot 47, plat 51 consisting of 10 acres, more or less;that certain land situated in the town of Foster delineated as Foster taxassessor's lot 42, plat 12 consisting of .3 acres, more or less; that certainland situated in the town of Scituate delineated as Scituate tax assessor's lot82, plat 49 consisting of 10 acres, more or less; that certain land situated inthe town of Foster delineated as Foster tax assessor's lot 41, plat 12consisting of 8 acres, more or less; that certain land situated in the town ofScituate delineated as Scituate tax assessor's lot 16, plat 37 consisting of 10acres more or less; that certain land situated in the town of Scituatedelineated as Scituate tax assessor's lot 83, plat 49 consisting of 20 acres,more or less; that certain land situated in the town of Scituate delineated asScituate tax assessor's lot 46, plat 9 consisting of 40 acres, more or less;that certain land situated in the town of Glocester delineated as Glocester taxassessor's lot 162, plat 18 consisting of 50.6 acres, more or less; thatcertain land situated in the town of Scituate delineated as Scituate taxassessor's lot 15, plat 37 consisting of 15 acres, more or less; that certainland situated in the town of Scituate delineated as Scituate tax assessor's lot29, plat 52 consisting of .2 acres, more or less; that certain land situated inthe town of Scituate delineated as Scituate tax assessor's lot 37, plat 17consisting of 29 acres, more or less; that certain land situated in the town ofScituate delineated as Scituate tax assessor's lot 11, plat 38 consisting of 17acres, more or less; that certain land situated in the town of Fosterdelineated as Foster tax assessor's lot 42A, plat 12 consisting of .4 acres,more or less; that certain land situated in the town of Scituate delineated asScituate tax assessor's lot 53, plat 20 consisting of 9 acres, more or less;that certain land situated in the town of Scituate delineated as Scituate taxassessor's lot 30, plat 52 consisting of .2 acres, more or less; that certainland situated in the town of Scituate delineated as Scituate tax assessor's lot81, plat 49 consisting of 73 acres, more or less; that certain land situated inthe town of Foster delineated as Foster tax assessor's lot 48A, plat 15consisting of 15.5 acres, more or less;
and that certain land situated in the town of Fosterdelineated as Foster tax assessor's lot 48, plat 15 consisting of 28.9 acres,more or less, for the purpose of protecting the public water supply.
(2) In addition to the powers previously granted, anyauthority in existence on July 7, 1989 has the power to acquire by exercise ofeminent domain the land, or any interest in it, described as that certain landsituated in the town of Scituate delineated as Scituate tax assessor's lots 45,48, 49, 60, 61, 62, and 63, plat 51 consisting of 542.11 acres, more or less,and commonly known as the "Joslin Farm" for the purpose of protecting the watersupply.
(3) Notwithstanding the preceding, in the event that theauthority ceases to use any land or development rights acquired by exercise ofeminent domain, pursuant to subsections (a) (1) or (a) (2), for the purpose ofprotecting the public water supply, the authority shall notify by certifiedmail return receipt requested, the original owner of the parcel or his or herlawful heirs, and the original owner or his or her lawful heirs shall have aright to recover the land or development rights. The land or development rightsshall revert to the original owner or his or her heirs upon the payment of anamount equal to the price originally paid to the owner plus simple interest atthe rate of six percent (6%) per annum (or any other purchase price that ismutually agreed upon between the parties) of the property or the developmentrights. Any transfer of the land or development rights to the city whose citycouncil established a need for an authority or any department, commission,board, or agency of the city shall not constitute a cessation of the use of theland or development rights for purposes of protecting the water supply.
(4) For the purposes of this section, the term "developmentrights" means the rights to:
(A) Prohibit the ability of the fee owner to act on or withrespect to or regarding uses of a land or water area; or
(B) Require the performance by the fee owner of acts on orwith respect to or regarding uses of a land or water area, which prohibition orrequirement retains or maintains the land or water area in its naturalcondition or any other condition that is consistent with the protection ofenvironmental quality or provides the public with the benefit of the uniquefeatures of the land or water area, provided, that development rights will notbe construed to deprive the original owner, his or her successors or assigns,of the right to continue to use the land for agricultural purposes so long asthat use conforms to acceptable agricultural practices as established by thedepartment of the environment and/or the United States soil conservationservice.
(ii) "Development rights" may also have any meaning as may bemutually agreed upon by the fee owner and the authority in any contract,agreement, deed to development rights, or proceeding before the authority. Theproceeding shall be initiated by a fee owner's filing a petition before theauthority and/or any lessee or successor agency seeking permission to use theland or water area for development. The authority has sixty (60) days todetermine if the activity described in the petition endangers the environmentalquality of the land or water area. Upon a finding of no danger to theenvironmental quality of the land or water area, the authority shall grant thepetition; provided, if no finding is made within sixty (60) days the petitionis deemed approved.
(5) In the event the authority has initiated condemnationproceedings for development rights, the original affected owner may notify theauthority and the superior court of his or her request that the authority takea fee simple interest in the land. Upon notification, the authority has thepower to acquire the land in fee simple by the exercise of the power of eminentdomain and shall exercise power to acquire a fee simple interest in the land.
(6) Prior to the authority's taking the actions described insubsections (b) through (h), for the purposes of this section, fair marketvalue of the property or development rights are determined as follows:
(ii) Each party (the authority and the landowner) shallappoint one appraiser (who shall be a qualified member of the Americaninstitute of real estate appraisers, the society of real estate appraisers, theAmerican society of farm managers and rural appraisers, the internationalassociation of assessing officers, the national society of real estateappraisers, the national society of independent fee appraisers, the Americansociety of appraisers or the international right of way association, or anysuccessor organization). Each appraiser shall, within twenty (20) business daysof his or her appointment, arrive at an independent determination of the fairmarket value of the property. If the difference between the two (2) appraisalsas so determined does not exceed ten percent (10%) of the lesser of the two (2)appraisals, then the fair market value is deemed to be an amount equal to fiftypercent (50%) of the sum of the two (2) appraisals. If the difference betweenthe appraisals exceeds ten percent (10%) of the lesser appraisal, then the two(2) appraisers have ten (10) calendar days within which to appoint a thirdappraiser, who shall, within twenty (20) calendar days, make his or her ownindependent determination of the fair market value of the property. All three(3) appraisals shall then be compared and the appraisal which differs most indollar amount from the other two (2) appraisals shall be excluded fromconsideration, and the fair market value of the property shall be deemed to befifty percent (50%) of the sum of the remaining two (2) appraisals. Theauthority shall make an offer to purchase the property or rights in propertybased upon the fair market value, which offer shall remain open for thirty (30)days or until the time the offer is accepted or rejected. If the offer of theauthority is rejected, the authority may proceed with condemnation proceedingswithin ten (10) days.
(b) The necessity for acquisition is conclusively presumedupon the adoption by the authority of a resolution declaring that theacquisition of the land, or interest in it, described in the resolution isnecessary for the construction or operation of any project. Within six (6)months of the adoption of a resolution, the authority shall cause to be filed,in the land evidence records of the city or town in which the land is located,a copy of the resolution of the authority, together with a plat of the land, orinterest in it described, and a statement, signed by the chairperson of theauthority, that the land, or interest in it, is taken pursuant to theprovisions of this chapter. Thereupon, the authority shall file, in thesuperior court in and for the county in which the land, or interest in it,lies, a statement of the sum of money estimated by the authority to be justcompensation for the land taken.
(c) Upon the filing of the copy of the resolution, plat, andstatement in the land evidence records of the city or town, the filing, in thesuperior court, of the statement, and the depositing in the superior court, tothe use of the person entitled to it, of a sum that the court determines to beamply sufficient to satisfy the claims of all persons interested in the land(and the court may, in its discretion, take evidence on the questions todetermine the sum to be deposited), title to the land, or interest in it, vestsin the authority in fee simple absolute, and the authority may take possessionof the land, or interest in it.
(d) No sum paid into the court shall be charged with clerk'sfees of any nature. After the filing of the copy, plat, and statement, noticeof the taking of the land, or interest in it, shall be served upon the ownersof, and persons having an estate in and interested in the land, by the sheriffor the sheriff 's deputies of the county in which the land, or interest in it,lies, leaving a true and attested copy of the description and statement witheach of the persons personally, or at their last and usual place of abode inthis state with some person living there, and in case any of the persons areabsent from this state and have no last and usual place of abode in this stateoccupied by any person, the copy shall be left with the persons, if any, incharge of or having possession of the land, or interest in it, taken of theabsent persons if the persons are known to the officer; and after the filing ofthe resolution, plat, and statement, the secretary of the authority shall causea copy of the resolution and statement to be published in some newspaperpublished or having general circulation in the county where the land, orinterest in it, may be located, at least once a week for three (3) successiveweeks. If any person agrees with the authority for the price of land, orinterest in it taken, the court, upon the application of the parties ininterest, may order that the sum agreed upon be paid immediately from the moneydeposited, as the just compensation to be awarded in the proceeding.
(e) Any owner of or person entitled to any estate in orinterested in any part of the land, or interest in it, taken, who cannot agreewith the authority for the price of the land, or interest in it, taken, inwhich he or she is interested, may, within three (3) months after personalnotice of the taking, or, if he or she has no personal notice, within one yearfrom the first publication of the copy of the resolution and statement, apply,by petition, to the superior court in and for the county in which the land, orinterest in it, lies, setting forth the taking of his or her land or interestin it, and praying for an assessment of damages by a jury. Upon filing of thepetition, the court shall cause twenty (20) days' notice of the pendency of thepetition to be given to the authority with a certified copy, and may proceedafter the notice to the trial; and the trial shall determine all questions offact relating to the value of the land, or interest in it, and the amount, andjudgment shall be entered upon the verdict of the jury, and execution shall beissued against the money so deposited in court and in default against any otherproperty of the authority. In case two (2) or more conflicting petitioners makeclaim to the same land, or to any interests in it, or to different interests inthe same parcel of land, the court, upon motion, shall consolidate theirseveral petitions for trial at the same time by the same jury, and may frameall necessary issues for the trial; and all proceedings taken pursuant to theprovisions of this chapter shall take precedence over all other civil mattersthen pending before the court, or if the superior court, in and for the countyin which the land, or interest in it, lies, is not in session in that county,then the proceedings may be heard in the superior court for the counties ofProvidence and Bristol.
(f) If any lands, or interests in them, in which any minor,or other person not capable in law to act in his or her own behalf, isinterested are taken by the authority under the provisions of this chapter, thesuperior court, upon the filing in the court of any petition by or in behalf ofthe minor or other person, may appoint a guardian ad litem for the minor orother person, and the guardian may appear and be heard in behalf of the minoror other person; and the guardian may also, with the advice and consent of thesuperior court and upon any terms that the superior court may prescribe,release to the authority all claims for damages for the lands of the minor orother person or for any interest in them. Any lawfully appointed, qualified,and acting guardian or other fiduciary of the estate of any minor or otherperson, with the approval of the court of probate within this state havingjurisdiction to authorize the sale of lands and properties within this state ofany minor or other person, may, before the filing of any petition, agree withthe authority upon the amount of damages suffered by the minor or other personby any taking of his or her lands or of his or her interests in any lands, andmay, upon receiving that amount, release to the authority all claims of damagesof the minor or other person for the taking.
(g) Whenever, from time to time, the authority has satisfiedthe court that the amount deposited with the court is greater than is amplysufficient to satisfy the claims of all persons interested in the land, thecourt may order that the amount of any excess including any interest orincrement on any sums so deposited be repaid to the authority. Whenever theauthority has satisfied the court that the claims of all persons interested inthe land taken have been satisfied, the unexpended balance, including anyinterest or increment on any sums deposited, shall be paid immediately to theauthority.
(h) In any proceedings for the assessment of compensation anddamages for land or interest in it taken, or to be taken by eminent domain bythe authority, the following provisions are applicable:
(1) At any time during the pendency of any action orproceeding, the authority or an owner may apply to the court for an orderdirecting an owner or the authority, as the case may be, to show cause whyfurther proceedings should not be expedited, and the court may, upon thatapplication, make an order requiring that the hearings proceed and that anyother steps be taken with all possible expedition.
(2) If any of the land, or interest in it, is devoted to apublic use, it may nevertheless be acquired, and the taking shall be effective,provided, that no land, or interest in it, belonging to a public utilitiesadministrator or other officer or tribunal having regulatory power over such acorporation is taken. Any land, or interest in it, already acquired by theauthority may, nevertheless, be included within the taking for the purpose ofacquiring any outstanding interests in the land.