How To Handle Multi-Parcel
Public Acquisition Projects
Kristine E. Cartwright
Condemning authorities must rely on
professional consultants to get the
multi-parcel public acquisition project done
on time and at the lowest possible cost.
• Political and public commitments; and
A LARGE, MULTI-PARCEL ACQUISITION
project can be enormously challenging. But for
a condemning authority the land acquisition
process on a major public project can be more
than just enormously challenging: it can be a
quagmire of unforeseen and frustrating complications. The problems with the land acquisition
program can not only be frustrating—they can
cause major delays and escalating costs. The
major problems facing the condemning authority fall in two general categories:
• The land acquisition process.
The political and public issues include:
• Adverse public reaction;
• Effective coordination between the respective
offices and agencies involved in the acquisition
project;
• Maintaining funding for the project;
• Escalating real estate settlements; and
• Community outreach.
Kristine E. Cartwright is the principal of K. Cartwright Associates, Inc., Miami Beach.
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The Practical Real Estate Lawyer
The major issues in the land acquisition
process that condemning authorities must consider are:
• Establishing accurate property valuations;
• Delineation of tenant-owned improvements;
• Timeliness of acquisition to meet the project
schedule;
• Parcel acquisition based on 30 per cent or less
of engineering design;
• Ineligible relocation costs;
• Availability of replacement property;
• Availability of experienced appraisers; and
• Adequacy of in-house staff resources.
METHODOLGY AND STRATEGY • In examining the methodologies and strategies used
by condemning authorities, keep in mind that
the respective authorities walk a fine line among
cost control, timely completion of the project,
and minimizing the adverse effects on the public, of which a large part is public perception.
The Central Artery, Ted Williams Tunnel Project,
located in Boston, Massachusetts, and the
Interstate 15 Reconstruction located in Salt Lake
City, Utah, are examples of two fast-track, multiparcel public acquisition projects that gave birth
to innovative methods and strategies for managing land acquisition programs. The methods
and strategies proved beneficial in meeting
deadlines and were cost effective.
Determining Realty and Personalty Items
The determination of realty and personalty
items is a major concern for condemning authorities. It is most problematic when tenantowned improvements are not properly identified before completion of the appraisals.
Improper identification or lack of identification
of real estate versus personal property can lead
to confusion, duplication in payments, higher
land damage awards and reimbursement of in-
September 2000
eligible betterments to property owners and
tenants. Condemning authorities need to avoid
making acquisition payments to the property
owners inclusive of tenant-owned improvements, also to the tenant seeking compensation
for his or her tenant-owned improvements as
personalty under the relocation assistance program, resulting in a double payment
The Real Property Report
The condemning authority should prepare a
real property report before the appraisal process
in coordination with the tenant, property owner,
right-of-way agent, and staff appraiser. The real
property report should include a list of questionable items of personalty and realty. The report should be reviewed and signed by the review appraiser, property owner, tenant, and
right-of-way agent. Before preparation of the
real property report, all parties should visit the
site to view the property. Because the lease may
include an eminent domain clause specifically
stating the disposition of the improvements, a
copy of the tenant lease is helpful in assisting in
the determination of realty and personalty.
The condemning authority must instruct the
appraisers to include in the appraisal report the
real property report identifying the realty and
personalty items and assign a value to each
item. In addition, the appraisers should assign a
separate value to the tenant-owned improvements, to allow (when applicable) for a separate
award to the tenant. In most cases where a detailed report of the realty and personalty determinations and tenant-owned improvements is
prepared early in the acquisition process and
before the completion of the appraisals, the condemning authority is able to save time and reduce litigation costs.
The Appraiser
Appraisal production, on a project driven by
a tight construction schedule, is an area where
Public Acquisition Projects
the condemning authority can be at a disadvantage. The condemning authority should subcontract with appraisers that have the qualifications and expertise to perform complex property valuations. Frequently, there is a shortage of
experienced, qualified appraisers. Large, multiparcel projects in urban areas require appraisers
with the experience and expertise to deal with
issues such as: subterranean easements, air
rights, environmental remediation, street and
alley vacations, functional replacement, and
tenant-owned improvements. They should also
be able to serve as expert witnesses at trial.
Appraisers with the expertise to address
complex valuation issues may not be available
within the project limits and condemning authorities may have to contract with appraisal
firms from other regions. In any event, the condemning authority must assemble a consortium
of appraisers with the technical skills and personnel to process a high volume of appraisals in
a short time. Using this methodology, condemning authorities find that quality appraisals
reduce payment of large sums in land damage
awards and timely appraisal production reduces delays to the project
Another related matter with appraisals is fairness and consistency in property valuation.
There is a perception that the condemning authority encourages their appraisers to assign
low values to appraisals to minimize costs.
Oftentimes property owners lose confidence in
the acquisition process because of this perception. Disparity in appraisals becomes a critical
issue for the condemning authorities because
land damage awards determined by juries tend
to be 10 per cent to 30 per cent greater than the
condemning authorities’ offer of just compensation. The priority for condemning authorities is
to agree on the property value at the negotiation
stage and not in court.
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Mutually Agreeing on Appraisers
One strategy to resolve the issue that has met
with some success is to have the property
owner and condemning authority mutually
agree on the appraisers retained to prepare the
appraisal reports. The property owner and condemning authority are then bound by the values established by the designated appraisers. If
there is a disparity between the values, the parties may agree to split the difference or have a
third appraiser or review appraiser attempt to
reconcile the difference.
A strategy that can be employed on designbuild projects is for the condemning authority
to evaluate and redesign the taking. The nature
of design build is such that the design of the
project is being developed and finalized concurrent with ongoing construction. This gives
the condemning authority some flexibility in
consideration of redesigning a taking to minimize the impact to property owners. In many
cases, a redesign of the land taking can be accomplished with no adverse effect on the project and minimal additional costs. This can have
a positive effect in reaching agreement with the
property owner and expedite the taking.
Finally, mediation has proven to be effective
as a tool for avoiding the costs and delays involved with court action.
Use a Right-of-Way-Scheduler
Developing and implementing appraisal production strategies can be expedited by using the
skills of a dedicated right-of-way scheduler.
This is a critical position, vital to the day-to-day
operation of the land acquisition program. The
scheduler will take direction and report directly
to the right-of-way project manager. He or she
will be the liaison between the right-of-way
group and other groups. The right-of-way
scheduler will attend construction and, design
meetings, as well as meetings of other groups
with functions relating to the land acquisition