[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:
1. 
Which are authorized by the Constitution or Statutes of Missouri to condemn private property; and
2. 
The members of which are appointed by the City Council.
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. 
For the purposes of this Article, unless otherwise provided by law, the following terms shall have the following meanings:
BLIGHTED AREA
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.
SUBSTANDARD AREA
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.
UNSANITARY AREA
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:
1. 
Identifies the property to be acquired;
2. 
Justifies the use of eminent domain consistent with this Article by declaring the findings required, including a declaration that the use of eminent domain is not primarily for economic development purposes.
D. 
In approving the exercise of eminent domain, the Council may impose such conditions as it deems reasonably necessary to address the considerations provided in Section 430.250 hereof.
[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.
3. 
The offer may accompany the notice required by Section 430.270, but nothing in this Section shall prohibit the parties from negotiating during the notice (sixty (60) days) or offer (thirty (30) days) periods.
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:
1. 
It has properly and timely given all notices to owners required by Section 430.270;
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
4. 
Where applicable, the condemnor has considered an alternate location suggested by the owner under Section 430.290.
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. 
For the purposes of this Article, the following terms shall mean:
FAIR MARKET VALUE
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.
HERITAGE VALUE
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.
HOMESTEAD TAKING
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.
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.