Kansas Eminent Domain Law
Eminent domain and condemnation: The terms “eminent domain” and “condemnation” mean the same thing in this type of action.
Offer is made: Prior to the filing of a condemnation petition, the condemning authority will make an offer to the property owner.
Filing of the Eminent Domain Petition: An eminent domain action is commenced by the filing of a petition in the state district court of the county in which the real estate is located.
Contents of the Petition: The petition shall state the authority for the condemnation and its purpose, a description of the property being acquired, and the names of all owners and lienholders of records.
Notice of Hearing: A date is set for the judge to hear evidence to determine if the condemnation should go forward and to select three court-appointed appraisers. This date for the hearing is normally set soon after the petition is filed.
Appointment of Court-Appointed Appraisers: If the judge finds that the condemning authority has the power of eminent domain and that it is being used properly in the case before him, the judge shall appoint three “appraisers”. The court appointed appraisers must be residents in the county where the petition is filed. Although these three appointees are called “appraisers,” they need not be actual real estate appraisers. The law requires only that two of three appointees shall have experience in the valuation of real estate.
Court appointed Appraisers’ Duty: The court-appointed appraisers appointed in the eminent domain action must view the property and hold a hearing to allow all parties and their counsel to present evidence and arguments as to the amount of compensation to be awarded.
Award of Compensation: Within 45 days after being appointed, the court-appointed appraisers shall file a report stating the fair-market value of the entire tract. If only a part of the property is taken, the compensation and measure of damages is the difference between the fair-market value of the entire property immediately before the taking and the value of the property remaining immediately after the taking. The condemning authority must pay the amount to the court within 30 days after filing of the appraisers’ report if the condemning agency intends to continue with the acquisition. Upon such payment being made, the title or interest being condemned vests in the condemning agency. Payment of the award is without prejudice to the condemning agency’s right to appeal from the court-appointed appraisers’ award and have a jury decide the compensation and, at the same time, the property owner may withdraw the award from the court without prejudice and have a jury decide the compensation.
Methods of Valuation: Just compensation is governed by the standard of fair market value. “Fair market value” means the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. “The traditional methods to measure fair market value are used: Comparable sales approach, the cost approach, and the income approach.
Compensation Factors to Consider in a Partial Taking: In determining the amount of compensation in a partial taking, the following nonexclusive list of factors shall be considered if such factors are shown to exist.Such factors are not to be considered as separate items of damages, but are to be considered only as they affect the total compensation. Such factors are:
1. The most advantageous use to which the property is reasonably adaptable.
2. Access to the property remaining.
3. Appearance of the property remaining, if appearance is an element of value in connection with any use for which the property is reasonably adaptable.
4. Productivity, convenience, use to be made of the property taken, or use of the property remaining.
5. View, ventilation and light, to the extent that they are beneficial attributes to the use of which the remaining property is devoted or to which it is reasonably adaptable.
6. Severance or division of a tract, whether the severance is initial or is in aggravation of a previous severance; changes of grade and loss or impairment of access by means of underpass or overpass incidental to changing the character or design of an existing improvement being considered as in aggravation of a previous severance, if in connection with the taking of additional land and needed to make the change in the improvement.
7. Loss of trees and shrubbery to the extent that they affect the value of the land taken, and to the extent that their loss impairs the value of the land remaining.
8. Cost of new fences or loss of fences and the cost of replacing them with fences of like quality, to the extent that such loss affects the value of the property remaining.
9. Destruction of a legal nonconforming use.
10. Damage to property abutting on a right-of-way due to change of grade where accompanied by a taking of land.
11. Proximity of new improvement to improvements remaining on the property owner’s land.
12. Loss of or damage to growing crops.
13. That the property could be or had been adapted to a use which was profitably carried on.
14. Cost of new drains or loss of drains and the cost of replacing them with drains of like quality, to the extent that such loss affects the value of the property remaining.
15. Cost of new private roads or passageways or loss of private roads or passageways and the cost of replacing them with private roads or passageways of like quality, to the extent that such loss affects the value of the property remaining.”
Valuation Jury Trial: If either party is dissatisfied with the award of the court-appointed appraisers, such party may, within 30 days after the filing of the court-appointed appraisers’ report, appeal from the award by filing a written notice of appeal with the court. This means that either party can have a jury decide the compensation. The only issue to be determined before a jury is the issue of just compensation to be awarded for-the land taken and any damage to the remaining land.