§ 1302. Procedure for taking property
(a) Highways and urban renewal. In taking land and other property for the purposes of laying out roads and highways,
the City Council shall proceed in the same manner as is provided by law for municipalities
in taking land for highways. In taking land and other property for the purposes of
urban renewal, the Council shall proceed in the same manner as is provided by law
for municipalities in taking land for urban renewal.
(b) Other public purposes.
(1) For all other purposes stated in section 1301 of this subchapter, when the City Council
determines that interests in real estate are needed or when a municipality votes to
purchase additional lands or interests therein, or when, in the exercise of any of
the powers or functions authorized by general law or its charter it becomes necessary
for public use and benefit to take, damage, or affect an interest in real estate,
and the owner refuses to release or convey the same to the City for a reasonable price,
the City Council shall set out the necessary lands or interests therein and cause
the same to be surveyed.
(2) The City Council shall appoint a time and place for hearing and give at least ten
days’ notice before such hearing to the persons evidencing a recorded interest therein
either personally or by written notice left at the residence or place of business
of such person. At such hearing, the Council shall determine the damages sustained
by such interested persons.
(3) The damages agreed upon or assessed shall be paid or tendered to such persons before
taking possession of the lands. Upon payment or tender of damages as determined by
the Council, the City shall be entitled to take possession of such property.
(c) Notice to mortgagee and application of payment. When such lands are encumbered by mortgage, the City Council shall cause the same
notice to be given to the mortgagee or assignee thereof as is required to be given
to the owner, and the damages agreed upon or otherwise determined, as finally ascertained,
shall be paid to the property owner and the mortgagee or assignee.
(d) Removal of improvements. When the City Council decides to take lands, in its order for that purpose, it shall
fix a time and notify the owner or occupant thereof. Within such time the owner shall,
if so ordered, remove his or her buildings, fences, wood, or trees, which, in the
case of enclosed or improved lands, shall not, without the consent of the owner, be
less than three months nor until compensation for damages to such lands is tendered
or paid. If such obstructions are not removed within such time, the Council shall
remove them at the expense of the City.
(e) Record of orders and proceedings. Orders and proceedings of the Council under the provisions of this section, with the
survey of the lands taken, shall be recorded in the land records of the City or in
the land records of the town in which such lands are located.
(f) Disagreement as to damages. When the owner of such land does not accept the damages awarded by the City Council,
the Council and the owner may agree to refer the question of damages to one or more
disinterested persons whose award shall be made in writing and shall be final.
(g) Petition; appointment of commissioners. When a person having an interest in such land is dissatisfied with the action of the
Council in locating and setting it out or with the damages awarded therefor by them,
such person may apply by petition to the Superior Court for the county in which such
land lies within 60 days of the recording of the order of the City Council. The petition
with a citation shall be served on the City Clerk as a writ of summons requiring entry
to be made therein within 21 days from the date of service. The court shall appoint
three disinterested commissioners who shall inquire into the amount of damages sustained
by the persons interested therein.
(h) Notice, hearing, report, costs. The commissioners shall give the City Clerk and the petitioners six days’ notice of
the time and place of the hearing. When they have completed their inquiries, they
shall report to the court. Upon hearing, the court may accept or reject the report,
in whole or in part, may make such orders as are necessary for locating and setting
out such land and for the removal of obstructions thereon, may render judgment for
the petitioners for such damages as they have severally sustained, may tax costs for
either party, and may award execution in the premises.
(i) Title to vest payment of damages. When the damages finally awarded are paid to the person entitled thereto, title to
such lands or the right to damage or affect lands shall vest in the City.
(j) Definitions. As used in this charter:
(1) “Necessity” means a reasonable need that considers the greatest public good and the
least inconvenience and expense to the condemning party and to the property owner.
Necessity shall not be measured merely by expense or convenience to the condemning
party. Necessity includes a reasonable need for the project in general as well as
a reasonable need to take a particular property and to take it to the extent proposed.
In determining necessity, consideration shall be given to the:
(A) adequacy of other property and locations;
(B) quantity, kind, and extent of cultivated and agricultural land that may be taken or
rendered unfit for use, immediately and over the long term, by the proposed taking;
(C) effect upon home and homestead rights and the convenience of the owner of the land;
(D) need to accommodate present and future utility installations within the improvement
area;
(E) need to mitigate the environmental impacts of the improvements; and
(F) effect upon grand lists and revenues.
(2) Damages resulting from the taking or use of property under the provisions of this
charter shall be the value for the most reasonable use of the property or right in
the property, and of the business on the property, and the direct and proximate decrease
in the value of the remaining property or right in the property and the business on
the property. The added value, if any, to the remaining property or right in the property
that accrues directly to the owner of the property as a result of the taking or use,
as distinguished from the general public benefit, shall be considered in the determination
of damages.
(3) “Interested person” or “person interested in lands” or “property owner” means a person
who has a legal interest of record in the property taken or proposed to be taken. (Amended 2013, No. M-19 (Adj. Sess.), § 2, eff. May 20, 2014.)