Pursuant to Vermont law, the agency or a town, city or village which is authorized to acquire, maintain and operate an airport, landing field, or air navigation facility, or two or more municipalities which are authorized, whenever it is necessary to acquire property within the state or some easement or other right in property in order that it may render adequate service to the public in the operation of an airport, landing field, or air navigation facility may acquire by eminent domain, such property or right either within or without its territorial limits, or both, as provided by legislation, for the construction, establishment, enlargement or improvement of an airport, landing field or air navigation facility[i]. The commissioner of the department of environmental conservation may petition the superior court for any county in which a portion of the real estate lies to determine that necessity requires that the state acquire real estate within the state, including real estate held for public use in the name of the state or any municipality, for the purpose of flood control projects. “Necessity” means a reasonable need which considers the greatest public good and the least inconvenience and expense to the condemning party and to the property owner. It shall not be measured merely by expense or convenience to the condemning party. Due consideration shall be given to the following factors:
- The adequacy of other property and locations;
- The quantity, kind and extent of cultivated and agricultural land which may be made unfit for use by the proposed taking. In this connection the effect on long range agricultural and use as well as the immediate effect shall be considered.
- The effect of the taking upon home and homestead rights and the convenience of the owner of the land.
- The effect of the taking upon scenic and recreational values in the areas involved.
- The effect upon town grand lists and revenues.
- The effect upon fish and wildlife, forests and forest programs, the natural flow of water and the streams both above and below any proposed structure, upon hazards to navigation, fishing and bathing, and upon other public uses.
- Whether the cutting clean and removal of all timber and tree growth from all or any part of any flowage area involved is reasonably required.
The petition, the service thereof, and the proceedings in relation thereto, including rights of appeal, shall conform with and be controlled by chapter 5 of Title 19[ii]. Notwithstanding any other provision of law, no governmental or private entity may take private property through the use of eminent domain if the taking is primarily for purposes of economic development, unless the property is taken pursuant to chapter 85 of Title 24 (urban renewal). This section shall not affect the authority of an entity authorized by law to use eminent domain for the following purposes:
- transportation projects, including highways, airports, and railroads;
- public utilities, including entities engaged in the generation, transmission, or distribution of electric, gas, sewer and sewage treatment, or communication services;
- public property, buildings, hospitals, and parks; or
- water, wastewater, stormwater, flood control, drainage, or waste disposal projects[iii].
A trier of fact in proceedings to determine damages due the owner of land taken by a governmental body by eminent domain shall find separately the value of each element thereof specified in section 221(2) of Title 19. When a judge submits the determination thereof to a jury, s/he shall instruct the jury that they shall bring in a special verdict on each of those elements involved in the case[iv].
When a fire district decides to erect a building for the preservation of its fire apparatus and the location of land for such building is determined, if the owner thereof refuses to convey the same to the district at a price which such district deems reasonable, such district may take such land in the same manner as a town may take land for town purposes as provided in sections 2805 to 2812 of Title 24. The duties imposed by such sections upon selectmen shall be performed by the prudential committee of such district. All petitions and notices shall be served on the clerk of such district in lieu of the town clerk as therein provided[v].
A town, city or incorporated village may acquire real property for purposes of a fire house or fire station by exercise of the right of eminent domain in the manner and according to the procedure provided in sections 2805-2812 of this title for acquisition of land for a municipal building[vi]. A solid waste management district, may acquire property, or some easement or other rights in property, in order to construct and operate a sanitary landfill including suitable buffer areas and transfer stations and other solid waste facilities located on the landfill site, by condemnation as provided in this subchapter.
A solid waste management district may condemn only property, easements, or rights in property lying within the boundary of the district at any time after June 28, 1991. However, withdrawal of a municipality from membership in the district before November 1, 1991 shall terminate condemnation proceedings with respect to property, easements, and interests in property lying within that municipality. This subchapter may not be used to condemn property, easements, or other rights in property at solid waste management facilities actually operated by any person at any time during the three years before a petition is filed under this subchapter under either transitional authorizations issued on or before August 1, 1987, interim, provisional, or final certifications issued by the agency of natural resources[vii].
A municipality shall have the right to acquire by condemnation a fee simple title or any other interest in real property which it may determine necessary for or in connection with an urban renewal project under this chapter. The powers conferred upon municipalities under this section shall be considered “urban renewal project powers” and the term “municipality” shall mean the agency, board, commissioner, or officers having such powers. The municipality shall set out the necessary lands and cause them to be surveyed. An approved urban renewal plan may be considered to constitute such a survey. Unless two-thirds of the voters present and voting thereon at an annual or special meeting duly warned for that purpose vote otherwise, nothing in this section shall be construed to authorize the taking by condemnation proceedings of property of any religious, charitable or educational society, institution, or organization, unless held or used by it for commercial purposes without the written consent of the trustees or the governing body of such society, institution, or organization. Property already devoted to a public use may be acquired hereunder but no real property belonging to the state or any political subdivision thereof shall be acquired without its consent[viii].
An authority shall have the right to acquire by the exercise of the power of eminent domain any real property which it may deem necessary for its purposes under this chapter after the adoption by it of a resolution declaring that the acquisition of the real property described therein is necessary for such purposes. An authority may exercise the power of eminent domain in the manner provided for the condemnation of land or rights therein by the state transportation board as set forth in sections 501-503 of Title 19 and acts amendatory thereof or supplementary thereto. Property already devoted to a public use may be acquired, provided that no real property belonging to the city, county, state, or any political subdivision thereof may be acquired without its consent.
Where it appears to the satisfaction of the court at any stage of the proceedings, upon the petition of the authority that the public interest will be prejudiced by delay, the court may, after such notice to the parties in interest as it may prescribe, which notice however shall not be less than eight days and may be by posting upon the property or by publication in such paper or papers at such time as the court may require, order that the authority be permitted to enter immediately upon the real property described in the petition, or any part thereof and to demolish any structures located thereon and to proceed with the construction of the project thereon, upon depositing with the court a sum of money or in lieu thereof, bonds or obligations of the United States of equivalent or greater value, not less than the last assessed valuation of the property, which the court shall find to be sufficient for the protection of the persons who may be entitled to the award. Such deposit or proceeds thereof shall be applied so far as it may be necessary for that purpose, to the payment of any award that may be made, with interest thereon, costs and expenses and the residue, if any, shall be returned to the authority. In the event of a deficiency in the sum deposited, the authority shall pay the balance to make up the award in accordance with the judgment.
All real property of any housing authority created pursuant to the provisions of this chapter shall be exempt from levy and sale by virtue of an execution and no execution or other judicial process shall issue against the same nor shall any judgment against such authority be a charge or lien upon its real property; provided however, that the provisions of this section shall not apply to or limit the right of obligees to foreclose or otherwise enforce any mortgage of such an authority or the right of obligees to pursue any remedy for the enforcement of any pledge or liens given by such an authority on its rents, fees, or revenues[ix].
In exercising the right of eminent domain to acquire any property or some easement or other limited right in property required by the city for the purposes authorized by this article, said city shall proceed by petition to the Public Service Commission and in the same manner and by the same process as provided in Chapter 242 of the Public Laws for the condemnation of property by public service corporations other than railroads and the Public Service Commission shall have all and the same powers and perform all and the same duties in hearing and determining the matter, rendering judgment and making findings as in the case of such public utility corporations. Any party who feels aggrieved by such judgment or findings shall have the same right of appeal with the same incidents thereof as provided by Section 5969 of the Public Laws in the case of condemnation proceedings by a public service corporation. In exercising its right to use public highways, said city shall have the same rights and be subject to the same restrictions as prescribed for towns in Chapter 259 of the Public Laws[x].
If a unit is acquired by eminent domain or if a part of a unit is acquired by eminent domain leaving the unit owner with a part that may not practically or lawfully be used for any purpose permitted by the declaration, the award shall include compensation to the unit owner for that unit and its allocated interests, whether or not any common elements are acquired. Upon acquisition, unless the decree provides otherwise, the allocated interests of that unit are automatically reallocated to the remaining units in proportion to the respective allocated interests of those units before the taking, and the association shall promptly prepare, execute and record an amendment to the declaration reflecting the reallocations. Any remnant of a unit remaining after part of a unit is taken under this subsection is thereafter a common element. If part of a unit is acquired by eminent domain, the award shall compensate the unit owner for the reduction in value of the unit and its interest in the common elements, whether or not any common elements are acquired. Unless the decree provides otherwise, upon acquisition:
- the allocated interests of that unit shall be reduced in proportion to the reduction in the size of the unit or on any other basis specified in the declaration; and
- the portion of the allocated interests divested from the partially acquired unit shall be automatically reallocated to that unit and to the remaining units in proportion to the respective allocated interests of those units before the taking, with the partially acquired unit participating in the reallocation on the basis of its reduced allocated interests.
If part of the common elements is acquired by eminent domain, the portion of the award attributable to the common elements taken shall be paid to the association. Unless the declaration provides otherwise, any portion of the award attributable to the acquisition of a limited common element shall be equally divided among the owners of the units to which that limited common element was allocated at the time of acquisition. The court decree shall be recorded in every municipality in which any portion of the common interest community is located[xi]. In addition to the powers granted the authority, when it is necessary or appropriate for the authority to acquire any property within the state, or some easement or other limited right or interest therein in order that it may carry out the purposes of this chapter, it may condemn the property, interest, or right and acquire it by the exercise of the right of eminent domain in the manner herein provided[xii]. When it is necessary for a corporation formed under this chapter or a foreign corporation under the jurisdiction of the public service board to acquire property within this state, or some easement, or other limited right in such property in order that it may render adequate service to the public in the conduct of its business, it may condemn such property or right. All other companies, shall have the same power of condemnation and be subject to the same procedure as hereinafter provided for condemnation by corporations subject to the jurisdiction of the public service board[xiii].
If the utility shall have responded in the negative or if it shall have failed to responded within the time prescribed, the municipality, in the event that it shall have passed the votes required, may take such private plant and property by the exercise of the right of eminent domain, paying therefor just compensation determined or after the board upon proper notice and hearing has determined that it will promote the general good of the state to do so, may construct a municipal plant[xiv].
[i] 5 V.S.A. § 651.
[ii] 10 V.S.A. § 958.
[iii] 12 V.S.A. § 1040.
[iv] 12 V.S.A. § 1905.
[v] 20 V.S.A. § 2606.
[vi] 24 V.S.A. § 1952.
[vii] 24 V.S.A. § 2299a.
[viii] 24 V.S.A. § 3210.
[ix] 24 V.S.A. § 4012.
[x] 24A V.S.A. § 3-420.
[xi] 27A V.S.A. § 1-107.
[xii] 29 V.S.A. § 791.
[xiii] 30 V.S.A. § 110.
[xiv] 30 V.S.A. § 2910.