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Condemnation By Vote, Ordinance, or Resolution

The condemnation of a land for public purposes can be made by several methods.  A state or an agency of a state can take over the land of a private owner by resorting to any one of the following methods.  They are:

  • by getting support in the form of votes from the voters in a city or a town;
  • by a resolution passed by the administrative board,
  • by filing a resolution passed by any other authority with the registry of deeds belonging to the county to which the property is subject.

A private owner’s property can be taken into possession by a state for a qualifying public purpose.  To effect the acquisition, Congress can enact a statute containing provisions for immediate appropriation of a property.  Congress has the authority to incorporate the provisions of immediate acquisition as a measure of legislative taking or intent.  Congress can also create special procedures to calculate “just compensation” to be paid to the property owners[i].

However notice must be served to the property owner before a condemnation proceeding is passed by resolution or ordinance.  Non issuance of notice to a property owner amounts to a violation of the property owner’s right to due process.

Some courts have expressed the view that issuance of a notice of resolution is not mandatory in condemnation proceedings[ii].  The courts have asserted that all questions relating to the condemnation of a property, which are political in their nature and rest in the exclusive control and discretion of the legislature, may be determined without notice to the property owner.  The urgency of the particular work or improvement and the character of a property are questions of this nature and the owner is not entitled to a hearing thereon as a matter of right[iii].

The right of due process includes:

  • right to receive timely notice of a resolution or the public hearing date on the project and condemnation proceeding[iv];
  • right to have a reasonable opportunity to produce evidence and argue on the matter[v];
  • right to receive a copy of the resolution;
  • right to confront or cross-examine witnesses; and
  • right to appeal against the impugned resolution.

[i] Southern Natural Gas Co. v. Land, Cullman County, 197 F.3d 1368 (11th Cir. Ala. 1999).

[ii] Spafford v. Brevard Cty., 92 Fla. 625 (Fla. 1926).

[iii] Jeffress v. Greenville, 154 N.C. 490 (N.C. 1911).

[iv] Hendershott v. Rogers, 237 Mich. 338 (Mich. 1927).

[v] State ex rel. State Highway Comm’n v. Stringer, 77 Wyo. 198 (Wyo. 1957).

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