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21 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.