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20 FHWA cautions that states must monitor supercom- Third, as a result of the enactment of AB 1322 an pensation payments and practice because state- owner is entitled to receive a full copy of the depart- mandated payments exceeding traditional concepts of ment's appraisal.231 Prior to passage, an Appraisal just compensation could "prove to be inconsistent with Summary Statement was all that was required. The the stewardship of Federal-aid highway funds."224 department is entitled to receive a copy of any appraisal for which it pays, including those provided under SB VII. POST-KELO REFORMS' PROCEDURAL 1210.232 Prior to the enactment of AB 1322, appraisal CHANGES AFFECTING TRANSPORTATION efficiencies existed because the department could com- PROJECTS bine a number of appraisals in one report that shared comparable properties.233 Caltrans advises that because of the need to craft one appraisal for each property, the A. Introduction combined reports are no longer as expeditious.234 Some post-Kelo changes have been procedural in na- In Missouri, as a result of post-Kelo reforms, there ture. According to one source, procedural protections are several new eminent domain requirements: a land- may have been included in the belief that they would owner must be given an opportunity to propose alter- help to deter "abusive condemnations" or would in- nate locations; a condemnor must provide a pre- crease property owners' "bargaining leverage."225 How- condemnation notice of the intended acquisition; a con- ever, the source submits that "it is the taxpayers demnation petition may not be filed within 30 days of who...bear the costs of additional hearings, preparation the written purchase offer; there must be co-signature of reports..., and any extra compensation paid to prop- of a certified appraisal on appraisal reports; and a con- erty owners" and that although such protections may demnor must offer the statutory homestead or heritage "deter relatively small-scale condemnations," they do bonus when it applies.235 Furthermore, the depart- not deter "larger ones."226 ment's view is that the new law, which statutorily rede- The DOTs responding to the survey provided exam- fined the concept of fair market value, will increase a ples of the post-Kelo requirements in their states and condemnor's costs.236 the effects thereof. Caltrans' response drew attention to Nevada stated that the state's recent amendment of three bills enacted into law in California. First, SB 1210 its constitution "open[s] the door" for payment of legal changed the prejudgment possession process.227 Al- fees in eminent domain actions; allows for challenges to though under prior law an ex parte hearing was suffi- necessity; necessitates that all appraisals be provided to cient, the law now requires an Order of Possession every property owner; mandates that interest that is Hearing that is attended by both parties, which is when paid must be compound interest; and requires that the the property owner may identify a hardship that, de- DOT "must use the property within 5 years of obtaining pending on the evidence, could delay possession "indefi- it in a condemnation action."237 nitely."228 The law requires a condemning agency to pay The Wyoming DOT reported that the post-Kelo re- the reasonable cost of an appraisal (up to $5,000) if the forms have affected the "process used to acquire prop- owner so chooses.229 erty for highway projects."238 The changes did not affect Caltrans noted that the second bill, SB 1650, "what could be acquired," but they did affect "how the changed the prior law to require that the department state acquired the property."239 Wyoming's response, offer to sell back property to the original owner if Cal- moreover, stated that the "greatest impact was to the trans does not use the property within 10 years and `good faith negotiation' requirements. These changes lease it back if the department will take longer than 2 added several steps to the process [that] complicated years to go to construction.230 224 Id. 1263.615 to, the Code of Civil Procedure. See eBULLETIN, 225 Somin, supra note 7, at 218. supra note 229. 226 231 Somin, supra note 7, 15 S. CT. ECON. REV. at 219. See CAL. STS. & HWY. CODE 102(b). See also Caltrans 227 SB 1210, effective Jan. 1, 2007, unless otherwise noted, Memorandum, Office of Appraisals and Local Programs and amended 1250.410, 1255.040, 1255.410, 1255.450, and Office of Right of Way Project Delivery, Implementation of AB 1255.460; added 1263.025; and repealed 1255.420 and 1322, dated Dec. 21, 2007, available at 1255.430 of the Code of Civil Procedure, as well as added hq/row/localprog/docs/ImplementationofAB1322.pdf, last 1091.6 to the Government Code and amended 33333.2 and accessed on July 5, 2011. 232 33333.4 of the Health and Safety Code. See eBULLETIN, Leg- Caltrans' Survey Response, dated Mar. 18, 2011. islative Amendments for 2007 to California Community Rede- 233 Id. velopment Law, hereafter cited as "eBULLETIN," available at 234 Id. 235 255, last accessed on July 5, 2011. MHTC's Survey Response, dated Mar. 10, 2011. 236 228 Caltrans' Survey Response, dated Mar. 18, 2011. Id. 237 229 Id. Nevada DOT's Survey Response, dated Mar. 14, 2011. 238 230 Id. SB 1650, effective Jan. 1, 2007, unless otherwise Wyoming DOT's Survey Response, dated Mar. 22, 2011. 239 noted, amends 1263.510 of, and adds 1245.245 and Id.