Under many (most?) state eminent domain schemes, if a property owner withdraws the condemnor's deposit prior to the judgment of condemnation, the owner waives -- or, more technically, forfeits -- the ability to challenge public use and necessity.
Vermont is no different, and under its statute, waiver is triggered by the owner's "acceptance and use" of a payment:
Except in the case of agreed compensation, an owner’s acceptance and use of a payment under this section does not affect his or her right to contest or appeal damages under sections 511-513 of this chapter but shall bar the owner’s right to contest necessity and public purpose.
19 Vt. Stat. Ann. § 506(c).
The Vermont Agency of Transportation was doing one of those interstate interchange reconstruction projects, and needed some nearby property. After some procedural wrangling about which property owners need to be included in the case, it sent the owners checks, which the owners or their agents deposited. The trial court determined that depositing the checks constituted "acceptance and use" of the payments, and the owners thus waived the owners' public use challenge.
In Agency of Transportation v. Timberlake Associates, LLC, No. 23-AP-059 (Mar. 2024), the Vermont Supreme Court affirmed. Most of the opinion centers on the statutory interpretation question about whether the term "acceptance and use" covers what happened here. Short story: the court held yes, depositing the checks is "use" of the payments:
The noun “use” is defined as, among other things, “the fact or state of being used,” and definitions of the verb form include “to put into action or service . . . avail oneself of,” “to expend or consume by putting to use,” and “to carry out a purpose or action by means of.” Use, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/ dictionary/use [https://perma.cc/ZX52-XHDL]. Depositing a check is a means of “avail[ing] oneself of” a payment. The payment is thereby “put into action or service” because control of the amount paid passes from the issuer of the check to the payee, who gains exclusive access to those funds upon deposit. ... Thus, an interpretation of § 506(c) under which depositing a check is one “use” of a payment is consistent with the plain and ordinary meaning of the term.
Slip op. at 8 (footnote omitted).
The more interesting question to us is whether, notwithstanding the owners' waiver under the statute, "they have a constitutional ... right[] to contest necessity and public purpose ... and the Agency was therefore required to show that they knowingly, intelligently, and voluntarily waived those rights[.]" Slip op. at 12. The court held no, the statute is enough, and even if the owners didn't understand that depositing the Agency checks would trigger waiver under the statute, the notion that ignorance of the law isn't an excuse for compliance. The owners here were also represented by counsel, and the court's judgment included express notice of the statute. "Defendants have identified no basis to conclude that the Agency was required to show knowing, intelligent, and voluntary waiver in order to invoke § 506(c) under these circumstances." Slip op. at 13.
Finally, the court declined to rule on the owners' argument that the statute is unconstitutional "because it is designed to cause involuntary waivers of the constitutional and statutory right to challenge necessity and public purpose." Id. Not raising the issue when perfecting the appeal meant that argument (like the public use challenge itself) was waived.
Agency of Transportation v. Timberlake Associates, LLC, No. 23-AP-059 (Vt. Mar. 2024)
