The condemnation of property by the government under the doctrine of eminent domain is envisaged to undertake programs for the benefit of the public as a whole. The condemnation of property may however adversely affect the displaced persons and the eminent domain law contains specific provisions for the relocation of displaced persons. The concerned agency shall make payment to any displaced person for “actual direct losses of tangible personal property as a result of moving or discontinuing a business but not to exceed an amount equal to the reasonable expenses that would have been required to relocate such property[i].” A displaced person is one who moves as a result of the acquisition of such real property or as the result of a written order to vacate the real property, for public use and includes any individual, family, partnership, corporation, or association[ii]. The government’s aim is to formulate and follow a uniform policy for the fair and equitable treatment of persons displaced by public and private condemnors in order to avoid disproportionate injuries to the displaced persons. The Model Eminent Domain Code §§ 1401 et seq or the Uniform Relocation Assistance and Land Acquisition Policies Act of 1970 are some of the statutory enactments in this regard.
The Uniform Relocation Assistance is a federal relief program for displaced persons. The purpose of the federal Act is to consolidate federal relocation efforts and standardize a type and amount of relief available to dislocated persons, regardless of the agency involved. In order to claim the benefit of this program, conformity with the requirements of the federal act is necessary. Thus the condemnation must be done in accordance with the federal norms for assuring the eligibility of state or local agencies for federal financial assistance with respect to all or part of the cost of any program or project that will result in the displacement of any person[iii]. Courts have held that the very purpose of the Uniform Relocation Assistance program was to avoid disproportionate injuries to persons displaced as result of programs designed for the benefit of the public as a whole rather than to guarantee identical substitute housing for all relocatees[iv]. The federal act extends only to federally assisted public projects.
The Model Code goes one step further to ensure fairness by stipulating fair and equitable relocation assistance to all irrespective of the fact whether the displacements were caused by both public and private condemnors, without reference to the availability of federal funding.
In order to claim relocation assistance, the aggrieved landowners shall follow proper statutory procedures pursuing administrative remedies[v]. For instance, application must be made within the stipulated date on which the displaced person moves from the real property acquired by the government.
Relocation assistance may be granted only after considering the wording of the statute and its construction by the courts. In some cases, courts have held that the Eminent Domain statutes applied irrespective of whether the realty in question was acquired by means of a negotiated purchase or through condemnation, while in some other cases, the statute’s application was restricted to condemned property. For instance, the Cal. Gov’t. Code § 7260(g) defines “public use” as a use for which real property “may be” acquired by eminent domain. The court has held that by use of the words “may be” rather than “is”, the very language of the statute makes it manifest that the actual filing of a condemnation action need not take place for coverage to be applicable under the Act[vi].
Certain state relocation assistance statutes expressly bar judicial review of the exercise of administrative discretion by the states and some other statutes providing for judicial review stipulate that an aggrieved person can seek such judicial review only after exhausting the administrative remedies. However, an aggrieved claimant can directly approach a court of law if the administrative remedies are inadequate or futile[vii].
The statute defines a displaced person as someone who moves from real property, or moves his/her personal property from real property: “(1) as a direct result of a written notice of intent to acquire, the initiation of negotiations for, or the acquisition of, such real property in whole or in part, for a program or project undertaken by a federal agency or with federal financial assistance; or (2) on which such person is a residential tenant or conducts a small business, a farm operation, or a business as a direct result of rehabilitation, demolition, or other displacing activity as the lead agency may prescribe, under a program or project undertaken by a federal agency or with federal financial assistance in any case in which the head of the displacing agency determines that such displacement is permanent[viii].”
In determining the question of whether the claimant is a displaced person, courts strictly interpret the causal relationship between the federally assisted program or project and the acquisition of that person’s property. Thus, a person is not deemed to be displaced merely because an agency receives federal assistance for the project. Similarly, tenants forced to relocate by foreclosure on housing projects with federally guaranteed financing are not displaced persons[ix]. The person must produce sufficient evidence to prove that he/she has moved as a direct result of the government’s acquisition program.
The term “acquisition” is susceptible to multiple and divergent interpretations and hence, courts have held that in order to be considered as a project, the written order to vacate must result directly from an actual or contemplated property acquisition and the acquisition must be “for,” or intended to further, a federal program or project. The agency cannot procure the property prior to developing a program[x].
Notice requirements stipulate that the acquiring or displacing agency must promptly notify all occupants in writing of their eligibility for applicable relocation assistance when the initiation of negotiations for the occupied property occurs[xi]. In the case of relocation payments to mobile home occupants, if the mobile home is not actually acquired, but the occupant is considered displaced, the “initiation of negotiations” is “the initiation of negotiations to acquire the land; or, if the land is not acquired, the written notification that he/she is a displaced person under the regulations[xii].”
Affected persons are entitled to at least 90 days’ advance written notice of the earliest date by which he/she may be required to move[xiii]. The 90-day notice must either state a specific date as the earliest date by which the occupant may be required to move, or state that the occupant will receive a further notice indicating, at least 30 days in advance, the specific date by which he/she must move.
The displaced persons may be entitled to moving and related expenses, replacement housing for homeowners including mortgage insurance, replacement housing for tenants and certain other displaced persons, relocation planning, assistance coordination, and advisory services, last resort housing replacement by the federal agency[xiv].
Agency actions involving relocation assistance are generally subject to judicial review under federal administrative review statutes[xv]. The statute provides for judicial review of the final federal agency action where there is an independent basis for subject matter jurisdiction.
The requirements necessary for a preliminary injunction are that the harm to the plaintiffs must be clearly irreparable, there must be a high probability that the plaintiffs will prevail on the merits, the public interest must favor the granting of the injunction, and any harm to the defendants must clearly be outweighed by the harm to the plaintiffs were the preliminary injunction was not issued[xvi].
[i] Highway Pavers, Inc. v. Secretary, United States Dep’t of Interior, 650 F. Supp. 559 (S.D. Fla. 1986).
[ii] 42 U.S.C.A. § 4601(5).
[iii] 42 U.S.C.A. § 4630.
[iv] Katsev v. Coleman, 530 F.2d 176 (8th Cir. Mo. 1976).
[v] Brown v. Mississippi Transp. Com’n, 749 So. 2d 948 (Miss. 1999).
[vi] Superior Strut & Hanger Co. v. Port of Oakland, 72 Cal. App. 3d 987 (Cal. App. 1st Dist. 1977).
[vii] Dukes v. Durante, 192 Conn. 207 (Conn. 1984).
[viii] 42 U.S.C.A. §§ 4601 to 4655.
[ix] Alexander v. United States Dep’t of Housing & Urban Dev., 441 U.S. 39 (U.S. 1979).
[x] Regional Transp. Dist. v. Outdoor Systems, Inc., 34 P.3d 408 (Colo. 2001).
[xi] 49 C.F.R. § 24.203(c)(2).
[xii] 49 C.F.R. § 24.207(b).
[xiii] 42 U.S.C.A. § 4633(b)(2).
[xiv] 42 U.S.C.A. § 4623-4626.
[xv] Ackerley Communications of Florida, Inc. v. Henderson, 881 F.2d 990 (11th Cir. 1989).
[xvi] La Raza Unida v. Volpe, 337 F. Supp. 221 (N.D. Cal. 1971).