[R.O. 2008 §55.400; Ord. No. 2334, 2-13-2007]
A.
This
Article codifies and supplements the condemnation limitations and
procedures imposed by Chapter 523, RSMo., on local governments, including
the City of Olivette, for the purposes of making those provisions
readily available to the residents and businesses of the City, increasing
public awareness of the authority of the City to condemn private property
for public use through eminent domain, establishing City Council considerations
for the exercise of eminent domain and reforming the process and use
of eminent domain in the City.
B.
If any
provision of this Article conflicts with any provision of Chapter
523, RSMo., or any other applicable law as they may be amended from
time to time, the statutory provision shall supersede this Article.
[R.O. 2008 §55.410; Ord. No. 2334, 2-13-2007]
A.
The power
of eminent domain shall be exercised only in the City's name and as
allowed by law and only by the City Council or those agencies:
B.
Private
property shall not be condemned through the process of eminent domain
for solely economic development purposes.
1.
For
the purpose of this Article, "economic development" shall mean the use of a specific piece of property or properties
to provide an increase in the tax base, tax revenues, employment and
general economic health of the City, but the term "economic
development" shall not be construed to include the elimination
of blighted, substandard or unsanitary areas when authorized by laws
passed pursuant to Article VI, Section 21 of the Missouri Constitution.
2.
BLIGHTED AREA
SUBSTANDARD AREA
UNSANITARY AREA
For
the purposes of this Article, unless otherwise provided by law, the
following terms shall have the following meanings:
An area which, by reason of the predominance of defective
or inadequate street layout, unsanitary or unsafe conditions, deterioration
of site improvements, improper subdivision or obsolete platting or
the existence of conditions which endanger life or property by fire
and other causes or any combination of such factors, retards the provision
of housing accommodations or constitutes an economic or social liability
or a menace to the public health, safety, morals or welfare in its
present condition and use.
Any improved area within the boundaries of a redevelopment
area located within the territorial limits of the City in which fifty
percent (50%) or more of the structures in the area have an age of
thirty-five (35) years or more and which is detrimental to the public
health, safety, morals or welfare and meets at least three (3) of
the following factors: dilapidation, obsolescence, deterioration,
illegal use of individual structures, presence of structures below
minimum code standards, abandonment, excessive vacancies, overcrowding
of structures and community facilities, inadequate utilities, excessive
land coverage, deleterious land use or layout, depreciation of physical
maintenance, lack of community planning or lack of ventilation, light
or sanitary facilities.
An area in which there is a predominance of buildings and
improvements which, by reason of dilapidation, deterioration, age
or obsolescence, inadequate provision for ventilation, light, air
sanitation or open spaces, high density of population and overcrowding
of buildings, overcrowding of land or the existence of conditions
which endanger life or property by fire and other causes or any combination
of such factors, is conducive to ill health, transmission of disease,
infant mortality, juvenile delinquency and crime or constitutes an
economic or social liability and is detrimental to the public health,
safety, morals or welfare.
3.
Blighted,
substandard or unsanitary areas as so defined are, when permitted
by context, hereafter collectively referred to as "blight" or "blighted".
C.
Blighted Areas.
1.
If the
exercise of the City's eminent domain authority is based on a determination
that a defined area is blighted, the Council shall individually consider
each parcel of property in the defined area with regard to whether
the property meets the relevant statutory definition. If the Council
finds that a preponderance of the defined redevelopment area is blighted,
the Council may proceed with condemnation of any parcels included
in such area.
2.
Any
determination that an area is blighted shall not be arbitrary or capricious
or induced by fraud, collusion or bad faith and shall be supported
by substantial and competent evidence which shall include a blighting
analysis prepared by an independent, disinterested, licensed land
use planner or other similar professional experienced in making such
analyses, to be retained by the City.
3.
The
City or the affected property owner may seek a determination as to
whether the standards of blight have been met as provided by relevant
Missouri law, by the Circuit Court of St. Louis County in any condemnation
action filed to acquire the owner's property or in an action seeking
a declaratory judgment as allowed by Missouri law.
4.
No action
to acquire property by eminent domain within a redevelopment area
shall be commenced later than three (3) years from the date of the
determination, by ordinance, that the property is blighted; however,
such determination may be renewed for successive three (3) year periods
by the City Council.
[R.O. 2008 §55.420; Ord. No. 2334, 2-13-2007]
A.
The Council
recognizes that requests for and the use of eminent domain will depend
on the unique circumstances of each particular development being proposed.
While eminent domain can only be considered and exercised or denied
on a case-by-case basis, it should be granted only when all fair and
reasonable efforts to negotiate the purchase of real estate have failed.
To assist in the determination of whether and how to use eminent domain,
the Council shall consider the following non-exclusive factors as
may be applicable:
1.
Whether
a redevelopment proposal has been adequately disclosed to the public
and whether adequate notice has been made to the property owners subject
to the proposal, property owners neighboring the proposal and any
other interested party.
2.
Whether
such interested parties and the public have had the opportunity to
be fully informed of and to be heard on the redevelopment proposal
and the request to exercise eminent domain.
3.
Whether
the applicant's redevelopment proposal is consistent with the planning
principles and goals of the Olivette Strategic Comprehensive Plan—Dynamic
Sense of Place as may be amended from time to time.
4.
Whether
the applicant's proposal has been determined to be viable and desirable
in conjunction with the City's redevelopment project management process
as established in the Olivette Strategic Comprehensive Plan—Dynamic
Sense of Place and as may be amended from time to time and whether
the applicant has followed that process.
5.
Whether
the applicant has demonstrated a firm and documented financial commitment
to the redevelopment proposal, including a financing commitment to
complete the project as proposed.
6.
Whether
the applicant has made a reasonable, good faith effort to acquire
the property needed for the applicant's proposal before requesting
the Council's approval of the exercise of eminent domain, including:
a.
The
use of reputable, disinterested, certified appraisers, with demonstrated
competence in the valuation of the kind of property at issue, in preparing
purchase options or offers;
b.
Communicating
openly and honestly with interested parties;
c.
Making purchase offers that reflect just compensation for the property to be acquired, including enhanced values as provided in Section 430.310 hereof;
d.
Making
purchase offers, to the extent reasonably possible, that would allow
the property owner to purchase comparable property, with comparability
being assessed in terms of the school district, physical characteristics,
location or such other factors germane to the property being acquired;
and
e.
Keeping
purchase offers open for a reasonable time for the property owner's
consideration.
7.
Whether
the applicant has obtained control over any parcels of the property
needed for the proposal, the percentage of such control and, if so,
whether the extent of such control tends to demonstrate the preferences
of the property owners immediately affected by the proposal as to
the desirability and propriety for using eminent domain.
8.
Whether
there is any other reasonable alternative to the exercise of eminent
domain.
9.
Whether
the authority for the exercise of eminent domain should expire if
not acted upon by the filing of a condemnation petition by a date
certain.
10.
Whether
any special measures, including, but not limited to, cash deposits,
irrevocable letters of credit or other security, are necessary to
protect interested parties should the eminent domain process not be
completed and, if so, whether the applicant is willing to commit to
such measures.
11.
Whether circumstances require the payment of relocation benefits (in excess of those minimums established in Sections 430.340 et seq. of the Municipal Code) or other relocation assistance and, if so, whether the applicant is willing to commit to such benefits and assistance.
12.
Such
other factors as the Council deems necessary or desirable, including,
but not limited to, the actions of the owner of the property to be
acquired, i.e., whether reasonable and in good faith, the necessity
or desirability of the proposal, i.e., to eliminate blight, enhance
public facilities or amenities, etc., and the amount of public assistance,
if any, to be granted to the applicant.
[R.O. 2008 §55.430; Ord. No. 2334, 2-13-2007]
A.
The Council
shall conduct a public hearing prior to approving the exercise of
eminent domain, after written notice published in the same manner
used by the City for rezoning considerations.
B.
In approving
the exercise of eminent domain, the City Council shall determine that:
1.
The
applicant's proposal is consistent with the Olivette Comprehensive
Plan and specifically the Strategic Comprehensive Plan;
2.
The
applicant has made a reasonable, good faith effort to acquire property
needed for the proposal on the open market and has provided adequate
documentation of same;
3.
The
applicant has complied with all requirements of law;
4.
Interested
parties and the public have had sufficient opportunity to be informed
of, and to be heard on, the proposal and the use of eminent domain;
5.
The Council has considered to the fullest extent reasonably possible all germane factors provided in Section 430.250 hereof;
6.
There
is no other reasonable alternative to the exercise of eminent domain;
and
7.
The
use of eminent domain is not solely for economic development purposes.
C.
The Council
shall not exercise the power of eminent domain except by ordinance
that:
[R.O. 2008 §55.440; Ord. No. 2334, 2-13-2007]
A.
If the
Council approves the exercise of eminent domain, the owner of record
of each property to be acquired shall be provided with a written notice
concerning the intended acquisition at least sixty (60) days before
filing a condemnation petition. Such notice shall include:
1.
Identification
of the interest in real property to be acquired and a statement of
the legal description or commonly known location of the property;
2.
The
purpose or purposes for which the property is to be acquired;
3.
A statement
that the property owner will receive:
a.
A written offer as provided in Section 430.280(A) hereof;
b.
An appraisal or other financial explanation supporting the offer so made as provided in Section 430.280(B) hereof; and
c.
A
statement noting that the property owner has the right to:
(1)
Seek legal counsel at the owner's expense;
(2)
Make a counteroffer and engage in further negotiations;
(3)
Obtain the owner's own appraisal of just compensation;
(4)
Have just compensation determined preliminarily by court-appointed
condemnation commissioners and, ultimately, by a jury;
(5)
Seek assistance from the office of the ombudsman for property rights
created under Section 523.277, RSMo.;
(6)
Contest the right to condemn in the condemnation proceeding; and
(7)
If applicable, exercise the right to request the vacation of an easement
in accord with the procedures and circumstances allowed by law.
B.
An owner
may waive the notice requirements prescribed above in a writing executed
by the owner.
C.
The written
notice required by this Section shall be deposited in the United States
mail, certified or registered and with postage prepaid, addressed
to the owner of record as listed in the office of the City or County
Assessor for the City or County in which the property is located.
The receipt issued to the condemning authority by the United States
Post Office for certified or registered mail shall constitute proof
of compliance with this requirement; provided however, that nothing
in this Section shall preclude a condemning authority from proving
compliance with this requirement by other competent evidence.
[R.O. 2008 §55.450; Ord. No. 2334, 2-13-2007]
A.
Any condemnation
offer made following the Council's approval of the use of eminent
domain shall comply with this Section.
1.
A written
offer shall be presented to all owners of record of property to be
acquired. The offer must be made at least thirty (30) days before
filing a condemnation petition and shall be held open for the thirty
(30) day period unless an agreement is reached sooner.
2.
The
offer shall be deposited in the United States mail, certified or registered
and with postage prepaid, addressed to the owner of record as listed
in the office of the City or County Assessor for the City or County
in which the property is located. The receipt issued to the condemning
authority by the United States Post Office for certified or registered
mail shall constitute proof of compliance with this requirement; provided
however, that nothing in this Section shall preclude a condemning
authority from proving compliance with this requirement by other competent
evidence.
B.
Appraisal.
1.
At the time of the offer, the property owner shall be provided with an appraisal or an explanation with financial data supporting the value of the property for purposes of the offer made in Subsection (A).
2.
Any
appraisal referred to in this Section shall be made by a reputable,
disinterested, State licensed or State certified appraiser, with demonstrated
competence in the valuation of the kind of property at issue, using
generally accepted appraisal practices.
[R.O. 2008 §55.460; Ord. No. 2334, 2-13-2007]
If the property to be condemned consists of a portion of a larger parcel of land, the landowner may propose in writing an alternative portion, located on the same parcel of the landowner's property, within thirty (30) days of receiving a written notice sent under Section 430.270. The proposal shall describe the alternative location in such detail that the alternative location is clearly defined and the proposed alternative location shall be considered. A written statement acknowledging the proposed alternative location and briefly stating why it was rejected or accepted is conclusive evidence that sufficient consideration was given to the alternative locations. This Section shall not apply to takings of an entire parcel of land.
[R.O. 2008 §55.470; Ord. No. 2334, 2-13-2007]
A.
The condemnor
shall engage in good faith negotiations prior to filing any condemnation
petition. The condemnor shall be deemed to have engaged in good faith
negotiations if:
2.
Its offer under Section 430.280 was no lower than the amount reflected in the appraisal or other financial explanation delivered to the owner pursuant to Section 430.280(B);
3.
The
owner has been given an opportunity to obtain his/her own appraisal
from a State licensed or State certified appraiser of his/her choice;
and
B.
If a
petition in condemnation is filed and the court finds that good faith
negotiations have not occurred, the court shall dismiss the petition,
without prejudice, and shall order the condemnor to reimburse the
owner for his/her actual reasonable attorneys' fees and costs incurred
with respect to the dismissed condemnation proceeding.
[R.O. 2008 §55.480; Ord. No. 2334, 2-13-2007]
A.
FAIR MARKET VALUE
HERITAGE VALUE
HOMESTEAD TAKING
For the
purposes of this Article, the following terms shall mean:
The value of the property taken after considering comparable
sales in the area, capitalization of income and replacement cost less
depreciation, singularly or in combination, as appropriate, and additionally
considering the value of the property based upon its highest and best
use, using generally accepted appraisal practices. If less than the
entire property is taken, fair market value shall mean the difference
between the fair market value of the entire property immediately prior
to the taking and the fair market value of the remaining or burdened
property immediately after the taking.
The value assigned to any real property, including, but not
limited to, real property owned by a business enterprise with fewer
than one hundred (100) employees, that has been owned within the same
family for fifty (50) or more years, such value to be fifty percent
(50%) of fair market value.
Any taking of a dwelling owned by the property owner and
functioning as the owner's primary place of residence or any taking
of the owner's property within three hundred (300) feet of the owner's
primary place of residence that prevents the owner from utilizing
the property in substantially the same manner as it is currently being
utilized.
B.
Just
compensation for condemned property shall be determined under one
(1) of the three (3) following subdivisions, whichever yields the
highest compensation, as applicable to the particular type of property
and taking:
1.
An amount
equivalent to the fair market value of such property;
2.
For
condemnations that result in a homestead taking, an amount equivalent
to the fair market value of such property multiplied by one hundred
twenty-five percent (125%); or
3.
For
condemnations of property that result in any taking that prevents
the owner from utilizing property in substantially the same manner
as it was being utilized on the day of the taking and involving property
owned within the same family for fifty (50) or more years, an amount
equivalent to the sum of the fair market value and heritage value.
C.
For the
purposes of this Section, family ownership of property may be established
through evidence of ownership by children, grandchildren, siblings
or nephews or nieces of the family member owning the property fifty
(50) years prior to the taking and in addition may be established
through marriage or adoption by such family members. If any entity
owns the real property, members of the family shall have an ownership
interest in more than fifty percent (50%) of the entity in order to
be within the family line of ownership for the purposes of this Subsection.
The property owner shall have the burden of proving to the Commissioners
or jury that the property has been owned within the same family for
fifty (50) or more years.
[R.O. 2008 §55.490; Ord. No. 2334, 2-13-2007]
The displacement of persons or businesses resulting from the initiation of condemnation proceedings shall be compensated as provided in Sections 430.340 et seq. of the Municipal Code.
[R.O. 2008 §55.500; Ord. No. 2334, 2-13-2007]
A.
If the
condemnor abandons a condemnation, each owner of interests sought
to be condemned shall be entitled to recover:
1.
Their
reasonable attorneys' fees, expert expenses and costs; and
2.
The
lesser of:
a.
The
owner's actual damages accrued as a direct and proximate result of
the pendency of the condemnation, if proven by the owner; or
b.
The
damages required to be paid to the owner in the event of an abandonment
under the terms of an applicable redevelopment plan or agreement.
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In the event that an applicable redevelopment plan or agreement
is silent as to damages required to be paid to an owner in the event
of an abandonment, the Circuit Court shall order the condemning authority
to pay the owner's actual reasonable attorneys' fees and expenses
and shall award damages accruing as a direct and proximate result
of the pendency of the condemnation, if proven by the landowner.
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