Last year, the owner of an 85-year-old seafood business in downtown Mobile closed its doors after the state condemned the property in preparation for the new Interstate 10 bridge over the Mobile River. In South Baldwin County, a family was forced to vacate their primary residence of more than 30 years as the state planned to build a new, toll-free bridge over the Intracoastal Waterway.
Then, Gov. Kay Ivey famously declared the I-10 bridge project “dead” after the Eastern Shore Metropolitan Planning Organization removed it from their planning documents, as an expression of opposition to the high costs the proposed toll would put on locals. In South Baldwin County, Orange Beach Mayor Tony Kennon recently reported the planned bridge over the Intracoastal Waterway may also be tabled, as negotiations are ongoing with the new owner of the existing toll bridge to expand.
But in both places, property owners have been displaced and regardless of the change in plans, condemnation proceedings continue and trials to determine the land’s fair market value — delayed for months by the coronavirus pandemic — are scheduled to continue next month.
Separately, on Nov. 3, Baldwin County voters will consider local Amendment 2, which if passed, will create a toll authority for the 25-mile extension of the Baldwin Beach Express (BBEII). While the proposed route is largely rural agricultural land, at least 42 other property owners may be subject to condemnation proceedings whether or not the funding is approved.
While no cases have been filed yet over the project, Baldwin County Engineer Joey Nunnally said last the right-of-way acquisitions would be funded with separate, federal money.
Attorney Casey Pipes, who represents Ralph Atkins of Southern Fish & Oyster on the I-10 condemnation and several defendants in South Baldwin County over the Intracoastal Waterway project, suggested whether the BBEII measure is approved or not, affected property owners may expect a visit from the state.
“Condemnation cases begin in probate court, where a judge hears challenges from property owners,” he explained last week. “You can call witnesses … The probate court will appoint three commissioners to hear evidence, determine the value of the property and render a verdict. Either party can appeal that judgment to circuit court and demand a jury trial, and that’s where cases really get resolved or tried.”
Pipes said state law generally favors the condemning agency and in his experience, the state’s appraisals of property targeted for condemnations are generally pretty low. Further, the state’s appraisal reports are not subject to legal discovery, nor is the information contained within.
“The state will appraise it in-house or use a third-party appraiser,” he said. “They will evaluate the property in its current condition and then as if the land has been taken and the road has been built, and whatever the difference is in what they think they owe you. What’s crazy is the state will make you an offer, but won’t give you the appraisal report. They won’t give you any basis to determine whether they got it right. They could give you the report if they wanted to, they just don’t want to.”
But property owners can contest the appraisals in probate court or circuit court, hiring their own appraisers to determine fair market value.
“You can also challenge the project itself or the agency’s power to condemn and if you win, you can recover court costs and attorneys’ fees,” he said. “If you don’t challenge it or the judge rules against you, you have a jury trial on the amount of money they owe.”
In one case in South Baldwin County, the state offered one family $403,000 for 8.38 acres where they maintained their primary residence and a number of rental houses, but a jury awarded them $1.2 million. Negotiations for a separate parcel owned by a family trust began at $737,150 for three acres, but the state eventually agreed to pay $8.25 million for 140 acres. But money doesn’t always exchange hands.
Pipes, who represented the city of Foley when it sought land for the first leg of the Baldwin Beach Express in the 1990s, said there, much of the land was donated.
“Like the original Baldwin Beach Express route, a lot of land on the proposed extension doesn’t have great road access now, but it will afterward, and sometimes land will be enhanced by a project,” he said. “Once rural agricultural land becomes commercially viable, it increases its value. Where you once had sod farms and timberland, owners donated property for the road and have since sold frontage to a McDonald’s or a gas station.”
But he also suggested property owners should always seek a second opinion.
“Condemnation actions are always under-compensated,” he said, noting juries cannot consider “sentimental value” or award attorneys’ fees. “Other states have made great progress to award attorneys’ fees if there is a substantial increase above the offer that proves the agency was lowballing. You can recover business losses in a lot of states. You can recover a premium on your property’s value if it’s your primary residence. But in Alabama, the instruction appraisers and the jury would get is, ‘What is the fair market value of the property?’ It’s pretty harsh.”
But for the extension, as well as the I-10 and Intracoastal Waterway bridges, once the state begins a condemnation action, it’s unlikely to terminate one.
“Why are we still spending money on a project the governor declared dead a year ago?” Pipes asked. “They are not filing new cases, but their attitude is they are going to finish the cases they started, and they are going to acquire the land. They’ve already kicked tenants out, torn buildings down, relocated people, uprooted businesses that have been there forever. I’m all for roads and progress, the Baldwin Beach Express was always planned to connect to I-10 and one day connect to I-65 and will be a tremendous asset to all of Baldwin County and I still believe it.
“I’m not opposed to using condemnation to complete that vision. But there is a right way to go about doing it from the agency’s side and the right way to do it from the landowners’ side and I think you have to be fair both ways.”
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