2013 -- H 5148

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LC00511

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO TOWNS AND CITIES - EMINENT DOMAIN PROCEEDINGS

     Introduced By: Representative Stephen R. Ucci

     Date Introduced: January 23, 2013

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 45-50-13 of the General Laws in Chapter 45-50 entitled "Municipal

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Public Buildings Authorities" is hereby amended to read as follows:

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     45-50-13. Eminent domain proceedings. -- (a) The authority has the right to acquire any

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land, or any interest in it, including development rights, by the exercise of the power of eminent

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domain, whenever it is determined by the authority that the acquisition of the land, or interest, is

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necessary for the construction or the operation of any project.

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      (1) (i) The power of eminent domain shall be exercised only within the boundaries of the

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city or town whose council established the authority, except that any authority in existence on the

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effective date of this chapter shall have the power to acquire, by exercise of eminent domain, only

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the development rights, except as stated in subsection (a) (5), in the land described in the tax

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assessor's plats for the towns of Foster, Scituate, Johnston, and Glocester, as of February 14,

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1989, for the purpose of protecting the water supply as follows:

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      (ii) That certain land situated in the town of Foster delineated as Foster tax assessor's lot

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47, plat 15 consisting of 32 acres, more or less; that certain land situated in the town of Scituate

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delineated as Scituate tax assessor's lot 147, plat 17 consisting of 5.6 acres, more or less; that

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certain land situated in the town of Scituate described as Scituate tax assessor's lot 60, plat 20

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consisting of 5.8 acres, more or less; that certain land situated in the town of Scituate delineated

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as Scituate tax assessor's lot 5, plat 42 consisting of 12 acres, more or less; that certain land

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situated in the town of Johnston delineated as Johnston tax assessor's lot 5, plat 57 consisting of

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3.9 acres, more or less; that certain land situated in the town of Johnston delineated as Johnston

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tax assessor's lot 58, plat 57 consisting of .7 acres, more or less; that certain land situated in the

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town of Johnston delineated as Johnston tax assessor's lot 6, plat 57 consisting of .4 acres, more

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or less; that certain land situated in the town of Johnston delineated as Johnston tax assessor's lot

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7, plat 57 consisting of .4 acres, more or less; that certain land situated in the town of Foster

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delineated as Foster tax assessor's lot 52, plat 15 consisting of 80 acres, more or less; that certain

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land situated in the town of Foster delineated as Foster tax assessor's lot 41A, plat 12 consisting

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of 9.8 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate

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tax assessor's lot 1, plat 38 consisting of 67 acres, more or less; that certain land situated in the

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town of Scituate delineated as Scituate tax assessor's lot 4, plat 42 consisting of 10.7 acres, more

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or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot

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251, plat 49 consisting of 129 acres, more or less; that certain land situated in the town of Scituate

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delineated as Scituate tax assessor's lot 3, plat 47 consisting of 29.6 acres, more or less; that

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certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 41, plat 41

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consisting of 140 acres, more or less; that certain land situated in the town of Johnston delineated

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as Johnston tax assessor's lot 17, plat 57 consisting of 45 acres, more or less; that certain land

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situated in the town of Johnston delineated as Johnston tax assessor's lot 20, plat 59 consisting of

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55 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax

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assessor's lot 15, plat 47 consisting of 9 acres, more or less; that certain land situated in the town

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of Glocester delineated as Glocester tax assessor's lot 164, plat 18 consisting of 211.7 acres, more

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or less; that certain land situated in the town of Foster delineated as Foster tax assessor's lot 31,

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plat 21 consisting of 22 acres, more or less; that certain land situated in the town of Scituate

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delineated as Scituate tax assessor's lot 14, plat 37 consisting of 15 acres, more or less; that

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certain land situated in the town of Foster delineated as Foster tax assessor's lot 49, plat 15

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consisting of 4.5 acres, more or less; that certain land situated in the town of Scituate delineated

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as Scituate tax assessor's lot 35, plat 14 consisting of 57 acres, more or less; that certain land

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situated in the town of Scituate delineated as Scituate tax assessor's lot 1, plat 37 consisting of 16

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acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax

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assessor's lot 5, plat 11 consisting of 33.8 acres, more or less; that certain land situated in the

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town of Foster delineated as Foster tax assessor's lot 34A, plat 9 consisting of 20 acres, more or

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less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 47,

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plat 51 consisting of 10 acres, more or less; that certain land situated in the town of Foster

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delineated as Foster tax assessor's lot 42, plat 12 consisting of .3 acres, more or less; that certain

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land situated in the town of Scituate delineated as Scituate tax assessor's lot 82, plat 49 consisting

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of 10 acres, more or less; that certain land situated in the town of Foster delineated as Foster tax

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assessor's lot 41, plat 12 consisting of 8 acres, more or less; that certain land situated in the town

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of Scituate delineated as Scituate tax assessor's lot 16, plat 37 consisting of 10 acres more or less;

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that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 83, plat

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49 consisting of 20 acres, more or less; that certain land situated in the town of Scituate

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delineated as Scituate tax assessor's lot 46, plat 9 consisting of 40 acres, more or less; that certain

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land situated in the town of Glocester delineated as Glocester tax assessor's lot 162, plat 18

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consisting of 50.6 acres, more or less; that certain land situated in the town of Scituate delineated

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as Scituate tax assessor's lot 15, plat 37 consisting of 15 acres, more or less; that certain land

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situated in the town of Scituate delineated as Scituate tax assessor's lot 29, plat 52 consisting of .2

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acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax

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assessor's lot 37, plat 17 consisting of 29 acres, more or less; that certain land situated in the town

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of Scituate delineated as Scituate tax assessor's lot 11, plat 38 consisting of 17 acres, more or less;

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that certain land situated in the town of Foster delineated as Foster tax assessor's lot 42A, plat 12

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consisting of .4 acres, more or less; that certain land situated in the town of Scituate delineated as

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Scituate tax assessor's lot 53, plat 20 consisting of 9 acres, more or less; that certain land situated

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in the town of Scituate delineated as Scituate tax assessor's lot 30, plat 52 consisting of .2 acres,

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more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's

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lot 81, plat 49 consisting of 73 acres, more or less; that certain land situated in the town of Foster

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delineated as Foster tax assessor's lot 48A, plat 15 consisting of 15.5 acres, more or less; and that

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certain land situated in the town of Foster delineated as Foster tax assessor's lot 48, plat 15

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consisting of 28.9 acres, more or less, for the purpose of protecting the public water supply.

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      (2) In addition to the powers previously granted, any authority in existence on July 7,

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1989 has the power to acquire by exercise of eminent domain the land, or any interest in it,

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described as that certain land situated in the town of Scituate delineated as Scituate tax assessor's

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lots 45, 48, 49, 60, 61, 62, and 63, plat 51 consisting of 542.11 acres, more or less, and commonly

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known as the "Joslin Farm" for the purpose of protecting the water supply.

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      (3) Notwithstanding the preceding, in the event that the authority ceases to use any land

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or development rights acquired by exercise of eminent domain, pursuant to subsections (a) (1) or

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(a) (2), for the purpose of protecting the public water supply, the authority shall notify by certified

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mail return receipt requested, the original owner of the parcel or his or her lawful heirs, and the

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original owner or his or her lawful heirs shall have a right to recover the land or development

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rights. The land or development rights shall revert to the original owner or his or her heirs upon

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the payment of an amount equal to the price originally paid to the owner plus simple interest at

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the rate of six percent (6%) per annum (or any other purchase price that is mutually agreed upon

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between the parties) of the property or the development rights. Any transfer of the land or

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development rights to the city whose city council established a need for an authority or any

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department, commission, board, or agency of the city shall not constitute a cessation of the use of

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the land or development rights for purposes of protecting the water supply.

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      (4) (i) For the purposes of this section, the term "development rights" means the rights

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to:

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      (A) Prohibit the ability of the fee owner to act on or with respect to or regarding uses of a

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land or water area; or

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      (B) Require the performance by the fee owner of acts on or with respect to or regarding

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uses of a land or water area, which prohibition or requirement retains or maintains the land or

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water area in its natural condition or any other condition that is consistent with the protection of

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environmental quality or provides the public with the benefit of the unique features of the land or

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water area, provided, that development rights will not be construed to deprive the original owner,

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his or her successors or assigns, of the right to continue to use the land for agricultural purposes

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so long as that use conforms to acceptable agricultural practices as established by the department

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of the environment and/or the United States soil conservation service.

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      (ii) "Development rights" may also have any meaning as may be mutually agreed upon

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by the fee owner and the authority in any contract, agreement, deed to development rights, or

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proceeding before the authority. The proceeding shall be initiated by a fee owner's filing a

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petition before the authority and/or any lessee or successor agency seeking permission to use the

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land or water area for development. The authority has sixty (60) days to determine if the activity

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described in the petition endangers the environmental quality of the land or water area. Upon a

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finding of no danger to the environmental quality of the land or water area, the authority shall

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grant the petition; provided, if no finding is made within sixty (60) days the petition is deemed

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approved.

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      (5) In the event the authority has initiated condemnation proceedings for development

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rights, the original affected owner may notify the authority and the superior court of his or her

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request that the authority take a fee simple interest in the land. Upon notification, the authority

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has the power to acquire the land in fee simple by the exercise of the power of eminent domain

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and shall exercise power to acquire a fee simple interest in the land.

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      (6) (i) Prior to the authority's taking the actions described in subsections (b) through (h),

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for the purposes of this section, fair market value of the property or development rights are

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determined as follows:

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      (ii) Each party (the authority and the landowner) shall appoint one appraiser (who shall

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be a qualified member of the American institute of real estate appraisers, the society of real estate

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appraisers, the American society of farm managers and rural appraisers, the international

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association of assessing officers, the national society of real estate appraisers, the national society

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of independent fee appraisers, the American society of appraisers or the international right of way

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association, or any successor organization). Each appraiser shall, within twenty (20) business

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days of his or her appointment, arrive at an independent determination of the fair market value of

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the property. If the difference between the two (2) appraisals as so determined does not exceed

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ten percent (10%) of the lesser of the two (2) appraisals, then the fair market value is deemed to

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be an amount equal to fifty percent (50%) of the sum of the two (2) appraisals. If the difference

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between the appraisals exceeds ten percent (10%) of the lesser appraisal, then the two (2)

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appraisers have ten (10) calendar days within which to appoint a third appraiser, who shall, within

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twenty (20) calendar days, make his or her own independent determination of the fair market

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value of the property. All three (3) appraisals shall then be compared and the appraisal which

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differs most in dollar amount from the other two (2) appraisals shall be excluded from

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consideration, and the fair market value of the property shall be deemed to be fifty percent (50%)

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of the sum of the remaining two (2) appraisals. The authority shall make an offer to purchase the

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property or rights in property based upon the fair market value, which offer shall remain open for

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thirty (30) days or until the time the offer is accepted or rejected. If the offer of the authority is

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rejected, the authority may proceed with condemnation proceedings within ten (10) days.

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      (b) The necessity for acquisition is conclusively presumed upon the adoption by the

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authority of a resolution declaring that the acquisition of the land, or interest in it, described in the

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resolution is necessary for the construction or operation of any project. Within six (6) months of

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the adoption of a resolution, the authority shall cause to be filed, in the land evidence records of

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the city or town in which the land is located, a copy of the resolution of the authority, together

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with a plat of the land, or interest in it described, and a statement, signed by the chairperson of the

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authority, that the land, or interest in it, is taken pursuant to the provisions of this chapter.

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Thereupon, the authority shall file, in the superior court in and for the county in which the land,

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or interest in it, lies, a statement of the sum of money estimated by the authority to be just

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compensation for the land taken.

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      (c) Upon the filing of the copy of the resolution, plat, and statement in the land evidence

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records of the city or town, the filing, in the superior court, of the statement, and the depositing in

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the superior court, to the use of the person entitled to it, of a sum that the court determines to be

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amply sufficient to satisfy the claims of all persons interested in the land (and the court may, in its

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discretion, take evidence on the questions to determine the sum to be deposited), title to the land,

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or interest in it, vests in the authority in fee simple absolute, and the authority may take

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possession of the land, or interest in it.

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      (d) No sum paid into the court shall be charged with clerk's fees of any nature. After the

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filing of the copy, plat, and statement, notice of the taking of the land, or interest in it, shall be

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served upon the owners of, and persons having an estate in and interested in the land, by the

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sheriff or the sheriff 's deputies of the county in which the land, or interest in it, lies, leaving a

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true and attested copy of the description and statement with each of the persons personally, or at

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their last and usual place of abode in this state with some person living there, and in case any of

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the persons are absent from this state and have no last and usual place of abode in this state

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occupied by any person, the copy shall be left with the persons, if any, in charge of or having

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possession of the land, or interest in it, taken of the absent persons if the persons are known to the

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officer; and after the filing of the resolution, plat, and statement, the secretary of the authority

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shall cause a copy of the resolution and statement to be published in some newspaper published

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or having general circulation in the county where the land, or interest in it, may be located, at

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least once a week for three (3) successive weeks. If any person agrees with the authority for the

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price of land, or interest in it taken, the court, upon the application of the parties in interest, may

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order that the sum agreed upon be paid immediately from the money deposited, as the just

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compensation to be awarded in the proceeding.

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      (e) Any owner of or person entitled to any estate in or interested in any part of the land,

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or interest in it, taken, who cannot agree with the authority for the price of the land, or interest in

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it, taken, in which he or she is interested, may, within three (3) months after personal notice of the

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taking, or, if he or she has no personal notice, within one year from the first publication of the

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copy of the resolution and statement, apply, by petition, to the superior court in and for the county

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in which the land, or interest in it, lies, setting forth the taking of his or her land or interest in it,

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and praying for an assessment of damages by a jury. Upon filing of the petition, the court shall

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cause twenty (20) days' notice of the pendency of the petition to be given to the authority with a

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certified copy, and may proceed after the notice to the trial; and the trial shall determine all

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questions of fact relating to the value of the land, or interest in it, and the amount, and judgment

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shall be entered upon the verdict of the jury, and execution shall be issued against the money so

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deposited in court and in default against any other property of the authority. In case two (2) or

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more conflicting petitioners make claim to the same land, or to any interests in it, or to different

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interests in the same parcel of land, the court, upon motion, shall consolidate their several

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petitions for trial at the same time by the same jury, and may frame all necessary issues for the

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trial; and all proceedings taken pursuant to the provisions of this chapter shall take precedence

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over all other civil matters then pending before the court, or if the superior court, in and for the

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county in which the land, or interest in it, lies, is not in session in that county, then the

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proceedings may be heard in the superior court for the counties of Providence and Bristol.

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      (f) If any lands, or interests in them, in which any minor, or other person not capable in

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law to act in his or her own behalf, is interested are taken by the authority under the provisions of

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this chapter, the superior court, upon the filing in the court of any petition by or in behalf of the

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minor or other person, may appoint a guardian ad litem for the minor or other person, and the

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guardian may appear and be heard in behalf of the minor or other person; and the guardian may

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also, with the advice and consent of the superior court and upon any terms that the superior court

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may prescribe, release to the authority all claims for damages for the lands of the minor or other

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person or for any interest in them. Any lawfully appointed, qualified, and acting guardian or other

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fiduciary of the estate of any minor or other person, with the approval of the court of probate

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within this state having jurisdiction to authorize the sale of lands and properties within this state

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of any minor or other person, may, before the filing of any petition, agree with the authority upon

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the amount of damages suffered by the minor or other person by any taking of his or her lands or

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of his or her interests in any lands, and may, upon receiving that amount, release to the authority

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all claims of damages of the minor or other person for the taking.

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      (g) Whenever, from time to time, the authority has satisfied the court that the amount

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deposited with the court is greater than is amply sufficient to satisfy the claims of all persons

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interested in the land, the court may order that the amount of any excess including any interest or

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increment on any sums so deposited be repaid to the authority. Whenever the authority has

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satisfied the court that the claims of all persons interested in the land taken have been satisfied,

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the unexpended balance, including any interest or increment on any sums deposited, shall be paid

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immediately to the authority.

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      (h) In any proceedings for the assessment of compensation and damages for land or

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interest in it taken, or to be taken by eminent domain by the authority, the following provisions

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are applicable:

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      (1) At any time during the pendency of any action or proceeding, the authority or an

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owner may apply to the court for an order directing an owner or the authority, as the case may be,

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to show cause why further proceedings should not be expedited, and the court may, upon that

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application, make an order requiring that the hearings proceed and that any other steps be taken

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with all possible expedition.

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      (2) If any of the land, or interest in it, is devoted to a public use, it may nevertheless be

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acquired, and the taking shall be effective, provided, that no land, or interest in it, belonging to a

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public utilities administrator or other officer or tribunal having regulatory power over such a

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corporation is taken. Any land, or interest in it, already acquired by the authority may,

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nevertheless, be included within the taking for the purpose of acquiring any outstanding interests

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in the land.

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     SECTION 2. This act shall take effect upon passage.

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LC00511

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO TOWNS AND CITIES - EMINENT DOMAIN PROCEEDINGS

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     This act would exclude property in the town of Scituate delineated as lot 1 plat 38,

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consisting of 67 acres, from being subject to eminent domain proceedings by the municipal public

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building authority.

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     This act would take effect upon passage.

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LC00511

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