§ 45-50-13 — § 45-50-13. Eminent domain proceedings.

§ 45-50-13. Eminent domain proceedings.

(a) The authority has the right to acquire any land, or any interest in it, including development rights, by the exercise of the power of eminent domain, whenever it is determined by the authority that the acquisition of the land, or interest, is necessary for the construction or the operation of any project.

(1)(i) The power of eminent domain shall be exercised only within the boundaries of the city or town whose council established the authority, except that any authority in existence on the effective date of this chapter shall have the power to acquire, by exercise of eminent domain, only the development rights, except as stated in subsection (a) (5), in the land described in the tax assessor's plats for the towns of Foster, Scituate, Johnston, and Glocester, as of February 14, 1989, for the purpose of protecting the water supply as follows:

(ii) That certain land situated in the town of Foster delineated as Foster tax assessor's lot 47, plat 15 consisting of 32 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 147, plat 17 consisting of 5.6 acres, more or less; that certain land situated in the town of Scituate described as Scituate tax assessor's lot 60, plat 20 consisting of 5.8 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 5, plat 42 consisting of 12 acres, more or less; that certain land situated in the town of Johnston delineated as Johnston tax assessor's lot 5, plat 57 consisting of 3.9 acres, more or less; that certain land situated in the town of Johnston delineated as Johnston tax assessor's lot 58, plat 57 consisting of .7 acres, more or less; that certain land situated in the town of Johnston delineated as Johnston tax assessor's lot 6, plat 57 consisting of .4 acres, more or less; that certain land situated in the town of Johnston delineated as Johnston tax assessor's lot 7, plat 57 consisting of .4 acres, more or less; that certain land situated in the town of Foster delineated as Foster tax assessor's lot 52, plat 15 consisting of 80 acres, more or less; that certain land situated in the town of Foster delineated as Foster tax assessor's lot 41A, plat 12 consisting of 9.8 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 1, plat 38 consisting of 67 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 4, plat 42 consisting of 10.7 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 251, plat 49 consisting of 129 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 3, plat 47 consisting of 29.6 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 41, plat 41 consisting of 140 acres, more or less; that certain land situated in the town of Johnston delineated as Johnston tax assessor's lot 17, plat 57 consisting of 45 acres, more or less; that certain land situated in the town of Johnston delineated as Johnston tax assessor's lot 20, plat 59 consisting of 55 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 15, plat 47 consisting of 9 acres, more or less; that certain land situated in the town of Glocester delineated as Glocester tax assessor's lot 164, plat 18 consisting of 211.7 acres, more or less; that certain land situated in the town of Foster delineated as Foster tax assessor's lot 31, plat 21 consisting of 22 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 14, plat 37 consisting of 15 acres, more or less; that certain land situated in the town of Foster delineated as Foster tax assessor's lot 49, plat 15 consisting of 4.5 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 35, plat 14 consisting of 57 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 1, plat 37 consisting of 16 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 5, plat 11 consisting of 33.8 acres, more or less; that certain land situated in the town of Foster delineated as Foster tax assessor's lot 34A, plat 9 consisting of 20 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 47, plat 51 consisting of 10 acres, more or less; that certain land situated in the town of Foster delineated as Foster tax assessor's lot 42, plat 12 consisting of .3 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 82, plat 49 consisting of 10 acres, more or less; that certain land situated in the town of Foster delineated as Foster tax assessor's lot 41, plat 12 consisting of 8 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 16, plat 37 consisting of 10 acres more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 83, plat 49 consisting of 20 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 46, plat 9 consisting of 40 acres, more or less; that certain land situated in the town of Glocester delineated as Glocester tax assessor's lot 162, plat 18 consisting of 50.6 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 15, plat 37 consisting of 15 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 29, plat 52 consisting of .2 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 37, plat 17 consisting of 29 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 11, plat 38 consisting of 17 acres, more or less; that certain land situated in the town of Foster delineated as Foster tax assessor's lot 42A, plat 12 consisting of .4 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 53, plat 20 consisting of 9 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 30, plat 52 consisting of .2 acres, more or less; that certain land situated in the town of Scituate delineated as Scituate tax assessor's lot 81, plat 49 consisting of 73 acres, more or less; that certain land situated in the town of Foster delineated as Foster tax assessor's lot 48A, plat 15 consisting of 15.5 acres, more or less;

and that certain land situated in the town of Foster delineated as Foster tax assessor's lot 48, plat 15 consisting of 28.9 acres, more or less, for the purpose of protecting the public water supply.

(2) In addition to the powers previously granted, any authority in existence on July 7, 1989 has the power to acquire by exercise of eminent domain the land, or any interest in it, described as that certain land situated in the town of Scituate delineated as Scituate tax assessor's lots 45, 48, 49, 60, 61, 62, and 63, plat 51 consisting of 542.11 acres, more or less, and commonly known as the "Joslin Farm� for the purpose of protecting the water supply.

(3) Notwithstanding the preceding, in the event that the authority ceases to use any land or development rights acquired by exercise of eminent domain, pursuant to subsections (a) (1) or (a) (2), for the purpose of protecting the public water supply, the authority shall notify by certified mail return receipt requested, the original owner of the parcel or his or her lawful heirs, and the original owner or his or her lawful heirs shall have a right to recover the land or development rights. The land or development rights shall revert to the original owner or his or her heirs upon the payment of an amount equal to the price originally paid to the owner plus simple interest at the rate of six percent (6%) per annum (or any other purchase price that is mutually agreed upon between the parties) of the property or the development rights. Any transfer of the land or development rights to the city whose city council established a need for an authority or any department, commission, board, or agency of the city shall not constitute a cessation of the use of the land or development rights for purposes of protecting the water supply.

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

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

(B) Require the performance by the fee owner of acts on or with respect to or regarding uses of a land or water area, which prohibition or requirement retains or maintains the land or water area in its natural condition or any other condition that is consistent with the protection of environmental quality or provides the public with the benefit of the unique features of the land or water area, provided, that development rights will not be construed to deprive the original owner, his or her successors or assigns, of the right to continue to use the land for agricultural purposes so long as that use conforms to acceptable agricultural practices as established by the department of the environment and/or the United States soil conservation service.

(ii) "Development rights� may also have any meaning as may be mutually agreed upon by the fee owner and the authority in any contract, agreement, deed to development rights, or proceeding before the authority. The proceeding shall be initiated by a fee owner's filing a petition before the authority and/or any lessee or successor agency seeking permission to use the land or water area for development. The authority has sixty (60) days to determine if the activity described in the petition endangers the environmental quality of the land or water area. Upon a finding of no danger to the environmental quality of the land or water area, the authority shall grant the petition; provided, if no finding is made within sixty (60) days the petition is deemed approved.

(5) In the event the authority has initiated condemnation proceedings for development rights, the original affected owner may notify the authority and the superior court of his or her request that the authority take a fee simple interest in the land. Upon notification, the authority has the power to acquire the land in fee simple by the exercise of the power of eminent domain and shall exercise power to acquire a fee simple interest in the land.

(6)(i) Prior to the authority's taking the actions described in subsections (b) through (h), for the purposes of this section, fair market value of the property or development rights are determined as follows:

(ii) Each party (the authority and the landowner) shall appoint one appraiser (who shall be a qualified member of the American institute of real estate appraisers, the society of real estate appraisers, the American society of farm managers and rural appraisers, the international association of assessing officers, the national society of real estate appraisers, the national society of independent fee appraisers, the American society of appraisers or the international right of way association, or any successor organization). Each appraiser shall, within twenty (20) business days of his or her appointment, arrive at an independent determination of the fair market value of the property. If the difference between the two (2) appraisals as so determined does not exceed ten percent (10%) of the lesser of the two (2) appraisals, then the fair market value is deemed to be an amount equal to fifty percent (50%) of the sum of the two (2) appraisals. If the difference between the appraisals exceeds ten percent (10%) of the lesser appraisal, then the two (2) appraisers have ten (10) calendar days within which to appoint a third appraiser, who shall, within twenty (20) calendar days, make his or her own independent determination of the fair market value of the property. All three (3) appraisals shall then be compared and the appraisal which differs most in dollar amount from the other two (2) appraisals shall be excluded from consideration, and the fair market value of the property shall be deemed to be fifty percent (50%) of the sum of the remaining two (2) appraisals. The authority shall make an offer to purchase the property or rights in property based upon the fair market value, which offer shall remain open for thirty (30) days or until the time the offer is accepted or rejected. If the offer of the authority is rejected, the authority may proceed with condemnation proceedings within ten (10) days.

(b) The necessity for acquisition is conclusively presumed upon the adoption by the authority of a resolution declaring that the acquisition of the land, or interest in it, described in the resolution is necessary for the construction or operation of any project. Within six (6) months of the adoption of a resolution, the authority shall cause to be filed, in the land evidence records of the city or town in which the land is located, a copy of the resolution of the authority, together with a plat of the land, or interest in it described, and a statement, signed by the chairperson of the authority, that the land, or interest in it, is taken pursuant to the provisions of this chapter. Thereupon, the authority shall file, in the superior court in and for the county in which the land, or interest in it, lies, a statement of the sum of money estimated by the authority to be just compensation for the land taken.

(c) Upon the filing of the copy of the resolution, plat, and statement in the land evidence records of the city or town, the filing, in the superior court, of the statement, and the depositing in the superior court, to the use of the person entitled to it, of a sum that the court determines to be amply sufficient to satisfy the claims of all persons interested in the land (and the court may, in its discretion, take evidence on the questions to determine the sum to be deposited), title to the land, or interest in it, vests in the authority in fee simple absolute, and the authority may take possession of the land, or interest in it.

(d) No sum paid into the court shall be charged with clerk's fees of any nature. After the filing of the copy, plat, and statement, notice of the taking of the land, or interest in it, shall be served upon the owners of, and persons having an estate in and interested in the land, by the sheriff or the sheriff 's deputies of the county in which the land, or interest in it, lies, leaving a true and attested copy of the description and statement with each of the persons personally, or at their last and usual place of abode in this state with some person living there, and in case any of the persons are absent from this state and have no last and usual place of abode in this state occupied by any person, the copy shall be left with the persons, if any, in charge of or having possession of the land, or interest in it, taken of the absent persons if the persons are known to the officer; and after the filing of the resolution, plat, and statement, the secretary of the authority shall cause a copy of the resolution and statement to be published in some newspaper published or having general circulation in the county where the land, or interest in it, may be located, at least once a week for three (3) successive weeks. If any person agrees with the authority for the price of land, or interest in it taken, the court, upon the application of the parties in interest, may order that the sum agreed upon be paid immediately from the money deposited, as the just compensation to be awarded in the proceeding.

(e) Any owner of or person entitled to any estate in or interested in any part of the land, or interest in it, taken, who cannot agree with the authority for the price of the land, or interest in it, taken, in which he or she is interested, may, within three (3) months after personal notice of the taking, or, if he or she has no personal notice, within one year from the first publication of the copy of the resolution and statement, apply, by petition, to the superior court in and for the county in which the land, or interest in it, lies, setting forth the taking of his or her land or interest in it, and praying for an assessment of damages by a jury. Upon filing of the petition, the court shall cause twenty (20) days' notice of the pendency of the petition to be given to the authority with a certified copy, and may proceed after the notice to the trial; and the trial shall determine all questions of fact relating to the value of the land, or interest in it, and the amount, and judgment shall be entered upon the verdict of the jury, and execution shall be issued against the money so deposited in court and in default against any other property of the authority. In case two (2) or more conflicting petitioners make claim to the same land, or to any interests in it, or to different interests in the same parcel of land, the court, upon motion, shall consolidate their several petitions for trial at the same time by the same jury, and may frame all necessary issues for the trial; and all proceedings taken pursuant to the provisions of this chapter shall take precedence over all other civil matters then pending before the court, or if the superior court, in and for the county in which the land, or interest in it, lies, is not in session in that county, then the proceedings may be heard in the superior court for the counties of Providence and Bristol.

(f) If any lands, or interests in them, in which any minor, or other person not capable in law to act in his or her own behalf, is interested are taken by the authority under the provisions of this chapter, the superior court, upon the filing in the court of any petition by or in behalf of the minor or other person, may appoint a guardian ad litem for the minor or other person, and the guardian may appear and be heard in behalf of the minor or other person; and the guardian may also, with the advice and consent of the superior court and upon any terms that the superior court may prescribe, release to the authority all claims for damages for the lands of the minor or other person or for any interest in them. Any lawfully appointed, qualified, and acting guardian or other fiduciary of the estate of any minor or other person, with the approval of the court of probate within this state having jurisdiction to authorize the sale of lands and properties within this state of any minor or other person, may, before the filing of any petition, agree with the authority upon the amount of damages suffered by the minor or other person by any taking of his or her lands or of his or her interests in any lands, and may, upon receiving that amount, release to the authority all claims of damages of the minor or other person for the taking.

(g) Whenever, from time to time, the authority has satisfied the court that the amount deposited with the court is greater than is amply sufficient to satisfy the claims of all persons interested in the land, the court may order that the amount of any excess including any interest or increment on any sums so deposited be repaid to the authority. Whenever the authority has satisfied the court that the claims of all persons interested in the land taken have been satisfied, the unexpended balance, including any interest or increment on any sums deposited, shall be paid immediately to the authority.

(h) In any proceedings for the assessment of compensation and damages for land or interest in it taken, or to be taken by eminent domain by the authority, the following provisions are applicable:

(1) At any time during the pendency of any action or proceeding, the authority or an owner may apply to the court for an order directing an owner or the authority, as the case may be, to show cause why further proceedings should not be expedited, and the court may, upon that application, make an order requiring that the hearings proceed and that any other steps be taken with all possible expedition.

(2) If any of the land, or interest in it, is devoted to a public use, it may nevertheless be acquired, and the taking shall be effective, provided, that no land, or interest in it, belonging to a public utilities administrator or other officer or tribunal having regulatory power over such a corporation is taken. Any land, or interest in it, already acquired by the authority may, nevertheless, be included within the taking for the purpose of acquiring any outstanding interests in the land.

Legislative History

P.L. 1987, ch. 475, § 1; P.L. 1988, ch. 84, § 110; P.L. 1989, ch. 298, § 1; P.L. 1990, ch. 359, § 1.