When an opinion starts off with "[t]his case offers a feast of legal issues - ranging from procedural to constitutional - but its main course is a cautionary tale to government entities: they must follow the exact statutory requirements for bringing a condemnation action[,]" you just know that you have to read the entire thing.
That's exactly what we recommend with the Utah Court of Appeals' opinion in Salt Lake City Corp. v. Kunz, No. 20190010-CA (Oct. 16, 2020). The court concluded that when a statute requires that a condemnor provide the property owner with at least 10 days written notice and an opportunity to be heard before the condemnor takes a final vote to approve exercising eminent domain, "substantial compliance" isn't sufficient. We make this recommendation that although this sort of statutory requirement is quite common -- as are examples of condemning agencies not strictly adhering to the required procedures -- we find that courts are just as often willing to let it slide, and these requirements are honored more in the breach than in the observance. Thus, we appreciate reading decisions in which courts do what they should and hold the condemnor's feet to the fire the legislature established.
How bad was the city's deviation from the required procedures here? Not that bad, frankly. Instead of conforming to the notice and opportunity requirement, the city did this:
Based on the undisputed facts, the City fully complied with those requirements as to the first meeting by sending notice at least ten business days in advance and allowing Owners to speak at the meeting. However, it only half complied as to the second meeting because it allowed Owners to speak but did not send written notice at least ten business days in advance. And it did not comply with either requirement as to the third meeting because the notice it sent arrived only three business days before the meeting and Owners were not allowed an opportunity to be heard.
Slip op. at 16.
Responding to the owners' objection, the city responded with "ahh, close enough; besides, there's no showing that the owners didn't have actual notice or didn't have an opportunity to be heard." See slip op. at 18. Sorry, held the court, when the statute says a condemnor must do X, it must do X. Strict compliance:
Once the statute is determined to require strict compliance, all bets are off for any actions other than exactness.
Slip op. at 18-19. The whole point of these type of procedural requirements isn't process for the sake of process, but to protect the rights of the property owners:
And the statute in this case does not relate to a mere fax number, recitation of a statute in a disclaimer, or a timeframe like the ones in the cited cases; instead, it goes to the weighty matter of providing procedural fairness and placing a check on a government entity’s immense power to deprive an owner of a substantive private property right. Thus, those cases do not allow a reading of substantial compliance into this statute because the statute’s requirements are mandatory.
Slip op. at 18.
Prejudice to the property owner, vel non, is not even relevant, and the court rejected the city's argument that the owners needed to have shown some prejudice that resulted from the lack of notice and hearing.
In sum, we view section 78B-6-504(2)(c)’s requirements as strict based on longstanding precedent. Actual notice simply won’t fly. And we conclude that Owners need not show prejudice in this context. Accordingly, we affirm the district court’s interpretation and dismissal under the statute.
Slip op. at 20-21.
One last thing (and this is related to our recent post on litigation fees under the Uniform Relocation Act). The court rejected the owners' claim to attorneys fees under the URA. The court mirrored the rationale of the Ohio Supreme Court, holding that the URA only applies to federal agencies, not Salt Lake City. The court also engaged in a somewhat weird (to us) approach to the URA's language that fees may be awarded if the agency "cannot acquire the real property by condemnation." The court read this language as meaning not that the owner defeats a particular taking, but that a court must conclude the condemnor "cannot" take the property. Slip op. at 23-24. In other words, there has to be some kind of final judgment that the taker can't take at all, not just that its case fails, as here.
We find that rationale to be just ... strange, especially in light of the court's earlier ruling on adhering to the requirements of Utah's procedural statute. Are there any circumstances in which a court will absolutely prohibit a condemnor from ever taking the property? We sure are hard-pressed to imagine any. In short, prosecuting and defending eminent domain actions are always done seriatim, and each case stands or falls on its own. A condemnor may repeatedly try to take property, but if it fails to adhere strictly to the requirements of how to do so, it should be on the hook for "not acquiring" the property.
But despite this glitch in the court's reasoning, we (naturally) recommend you read the opinion, and incorporate its core holding: close enough is not good enough in eminent domain.
Salt Lake City Corp. v. Kunz, No. 20190010-CA (Utah App. Oct. 16, 2020)
