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and added significant time to right-of-way acquisitions vide for increased notice for property owners.247 For
under the threat of eminent domain."240 example, state law may require the posting of a notice
near the property a specified number of days before the
B. Attorney's Fees and Other Expenses exercise of eminent domain.248 After the Kelo case, the
If a condemnation proceeding is abandoned or if the Tennessee legislature, among other changes, revised its
court determines that the condemnor may not acquire quick-take method for takings from a 5-day notice that
the property, the owner may be entitled to recover fees existed prior to 2006 to a 30-day notice before public
and expenses for the services of an attorney, appraiser, agencies may take possession of a property.249
and engineer.241 A property owner may be entitled to
"relocation damages."242 In some states, a property D. Right of First Refusal
owner may be able to recover reasonable attorney's fees If property is condemned but not used for the pur-
and costs if a taking is found not to be for a public pose for which it was taken, before the public agency
use.243 Oregon's statute provides that a court, first, may sell the property, state law may require that the
must "independently determine whether a taking of property first be offered for sale to the one owning the
property complies" with the law's requirements "with- property prior to condemnation.250 If the prior owner
out deference to any determination made by the public does not accept within a certain period the public
body."244 Second, if the court determines that the taking agency's offer, such as the amount of the price paid for
is not compliant with the requirements, the property the property or the current fair market value, which-
owner is "entitled to reasonable attorney fees, expenses, ever is less, the property may be sold to any other pri-
costs and other disbursements reasonably incurred to vate party.251 The duration of the right of first refusal of
defend against the proposed condemnation."245 As ex- the former owner, or his or her heir or successor in in-
plained in Section VIII.A.1, two DOTs stated that their terest, varies from state to state, such as 5 years in
costs had increased because of post-Kelo provisions hav-
ing to do with a property owner's recovery of attorney's
fees.
C. Notice Requirements 247
WASH. REV. CODE ANN. § 8.25.290(2)(a)(1) (providing
Although it is beyond the scope of the digest to dis- that notice of a planned final action must be sent by certified
cuss the various provisions of state codes applicable to mail at least 15 days before the final action).
the eminent domain process, it may be noted that sev- 248
GA. CODE ANN. § 22-1-10(a)(1) (providing that no less
eral states' post-Kelo reforms went beyond defining than 15 days before any meeting when a resolution approving
public use, prohibiting or restricting the taking of prop- the exercise of eminent domain is to be considered, a condem-
erty for transfer to another private person or entity, or nor must post a sign, if possible, in the right-of-way adjacent to
limiting the definition of blighted property. States that each property stating the time, date, and place of the meeting).
249
appear to have significantly revised their eminent do- TENN. CODE ANN. §§ 29-17-903(c) and (d) (stating that a
main procedures in the wake of the Kelo decision in- notice of the filing of a petition must be given to the owner at
least 30 days prior to the taking of any additional steps in the
clude, for example, Georgia, Indiana, Louisiana, Minne-
case and that after 30 days from the giving of notice, if the
sota, and Tennessee.246 Whether in connection with right to take is not questioned, the condemner shall have the
takings by eminent domain generally or takings specifi- right to take possession of the property). See Beau Pemberton,
cally of blighted property, some post-Kelo reforms pro- Reforming Eminent Domain in Tennessee after Kelo: Safe-
guarding the Family Farm, 4 TENN. J. L. & POL'Y 73, 93 (2008)
240
(citing TENN. CODE ANN. § 29-17-903(c) (Supp. 2007)).
Id. 250
241
ALA. CODE § 11-47-170(c); see also ALA. CODE § 11-80-
GA. CODE ANN. § 22-1-12. 1(c); FLA. STAT. ANN. § 73.013(2)(b)(2); GA. CODE ANN. § 22-1-
242
Id. § 22-1-13(1)-(4) (stating that a condemnee may re- 2(c)(1) (former owner has to apply for a reconveyance); MICH.
cover actual reasonable moving expenses, actual direct losses COMP. LAWS § 117.226(a); OHIO REV. CODE ANN. § 163.211
of tangible personal property as a result of moving or discon- (right of repurchase extinguished after 5 years); S.D. CODIFIED
tinuing a business or farm operation, other relocation expenses LAWS § 11-7-2.2 (applicable to any transfer of the property
authorized by law, and, with the condemnee's consent, the within 7 years of acquisition).
condemnor may provide alternative site property as full or 251
ALA. CODE § 11-47-170(c) (90 days); see ALA. CODE § 11-
partial compensation). 80-1(c); FLA. STAT. ANN. §§ 73.013(2)(a) and (b).
243
ARIZ. REV. STAT. § 12-1135(B); IND. CODE ANN. § 32-24-
4.5-7 (recovery if condemnor does not establish blight in accor-
dance with the statutory elements); OR. REV. STAT.
§ 35.015(6)).
244
OR. REV. STAT. § 35.015(6).
245
Id.
246
GA. CODE ANN. § 22-1-1, et seq.; IND. CODE ANN. § 32-24-
4.5, et seq.; LA. CONST. art. 1, § 4; MINN. STAT. § 117.102, et
seq.; and TENN. CODE ANN. § 29-17-101, et seq. See also Castle
Report, supra note 40.
