Under Nebraska eminent domain law, the condemnor is required to make a "good faith" effort to negotiate with the property owner before it files an eminent domain action. See Neb. Rev. Stat. § 76-704.01(6).
In Camden v. Papio-Missouri River Natural Resources District, No. A-13-266 (Aug. 26, 2014), the court concluded that the condemnor had not made these efforts. Here's what occurred:
- The NRD contacted the property owners, and made an offer of $67k for the desired easements.
- The owner said "from now on, talk to my lawyer."
- The NRD did so, and sent the owners' lawyer a revised proposed purchase agreement.
- The owners, through their lawyer, rejected the offer. They valued the loss at $750k.
- The owners also proposed an alternative to only monetary compensation.
- The NRD responded that the counteroffer was unresonable, and thus stafff would not recommend the NRD board accept it, but suggested the owners appear at the next board meeting and make a presentation.
- The owners lawyer did appear, and "was allowed to briefly speak in front of the Board before being told to sit down." "One of the Board members testified that the Camdens’ proposal document was not physically presented at the subsequent closed session of the meeting. Nor, he testifed, was the Camdens’ counteroffer completely explained to the Board; instead, NRD management only informed the Board that the Camdens “gave a frivolous offer.” At the conclusion of the meeting, the Board adopted the condemnation resolution." Slip op. at 312.
- "No actual response to the Camdens’ counteroffer was given by the NRD, and no further effort was made to negotiate an agreement with the Camdens prior to commencement of the condemnation proceedings." Id.
- The NRD instituted eminent domain proceedings.
The trial court dismissed the action, concluding that the owners' counteroffer was not frivolous:
The district court found that the NRD was under pressure to complete the project as quickly as possible to avoid losing federal stimulus funds. It found that because of this pressure, the NRD made a number of errors during the process, including having to initiate three separate condemnation proceedings in order to address legal description discrepancies. The court also concluded that the NRD did not negotiate in good faith, because it did not make a reasonable attempt to induce the Camdens to accept the offer.Slip op. at 313.
The court of appeals affirmed. It agreed that the NRD had not made a good faith effort to negotiate, and that the owners' counteroffer was not frivolous.
We conclude, as did the district court, that the NRD’s offer to the Camdens occurred on July 30, 2009. The NRD’s arguments that it made earlier design changes to the rehabilitation project in order to induce the Camdens to accept the offer are not convincing. Although the NRD did include the Camdens in initial discussions regarding the dam rehabilitation while the environmental impact was studied, at no time did the NRD convey to the Camdens that it was negotiating for easements on their property. Further, these discussions occurred before the Camdens were aware of the exact extent of the NRD’s taking. Additionally, the NRD never conveyed to the Camdens that it was changing the elevation of the spillway as part of the negotiations. Rather, the NRD stated that revisions to the offer were being made and a revised offer would be sent at some point. There is no evidence in the record that the Camdens were aware the NRD was lowering the spillway as part of the negotiations. Rather, the NRD made this change unilaterally.We also reject the NRD’s claim that affording the Camdens an opportunity to present at the August 2009 meeting of the Board was a reasonable attempt to induce acceptance of the offer. The record shows that John had a brief opportunity to address the Board before and after the Board went into a closed executive session. There is no evidence in the record that the Board gave a formal response to the Camdens’ counteroffer, presented another offer in response to the Camdens’ counteroffer, or even retendered its original offer during that meeting. In fact, the only evidence in the record regarding this meeting demonstrates that the Board was simply informed during its executive session that the Camdens’ counteroffer was frivolous.
Finally, having independently analyzed the Camdens’ counteroffer, we cannot say the district court erred when it found the counteroffer was not unreasonable to the degree that would have excused the NRD from further negotiations. When the Camdens made their counteroffer, it was in response to the NRD’s revised offer which incorporated a design change in the spillway. The NRD never informed the Camdens that additional changes to the project could not be accommodated. Thus, the Camdens’ proposals for design changes were not unreasonable.
Slip op. at 318-19. The condemnor had not made a good faith offer and undertaken resonable efforts to induce the owners to accept it. You don't have to undertake "extensive negotiations," but you've got to make an effort.
The court also reaffirmed that these efforts are "mandatory and jurisdictional," meaning that in the absence of a showing of good faith effort, the condemnor lacks the authority to take the property. Id. at 315.
Camden v. Papio-Missouri River Natural Resources District, No. A-13-266 (Neb. App. Aug. 26, 2014)
