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Since the Congress has recognized the equity of permitting the deferment of gain on property taken for public use, there seems to be no reason why the property owner's right to reinvest should be limited to real property, in a case where it is more reasonable for him to buy securities, or to buy or establish a business.

B. RECOMMENDATIONS

The recommendations which follow cover a broad range of subjects. Many are within the jurisdiction of other committees of Congress. Each recommendation, however, relates directly to specific problems of property owners, tenants, or other persons affected by the acquisition of land for Federal or federally assisted programs.

For the convenience of the committees, Members of Congress, and others, part C of this chapter includes a “proposed bill," with a detailed table of contents, and provides suggested language for implementing each recommendation. For further convenience a reference to the pertinent title and section is included with each recommendation.

It is hoped that the Committee on Public Works and other committees of the Congress will give these recommendations serious consideration, and that appropriate legislation will be enacted at the earliest possible time, in order to eliminate inequities and to minimize hardships in all Federal and federally assisted programs. Recommendation 1. Declaration of policy (title I)

It is recommended that the Congress declare the policy that owners and tenants of property acquired for public programs conducted by the Federal Government, or with the assistance of Federal funds, shall be afforded fair and equitable treatment on a basis as nearly uniform as practicable; that owners and tenants shall be fairly compensated for their property and for other losses and necessary expenses incurred because of such programs; and that every reasonable effort shall be made to prevent hardships to persons caused to move from their homes, farms, or places of business, or to lose their employment or to suffer other economic injury as a direct result of such programs. Recommendation 2. Uniform policy on Federal land acquisition

practices (title I, sec. 101) It is recommended

(a) That the Congress establish a uniform policy to guide the land acquisition practices of all Federal agencies in order to assure consistent and equitable treatment, to the greatest extent practicable, for property owners and tenants in the many different Federal programs.

(b) That the policy on land acquisition practices provide that

(1) Every reasonable effort should be made to acquire real property by negotiated purchase.

(2) Real property should be appraised before the initiation of negotiations, and the owner or his designated representative should be given an opportunity to accompany the appraiser during his inspection of the property.

(3) Before the initiation of negotiations for property, the head of the Federal agency concerned should establish a price which he believes to be a fair and reasonable consideration therefor, and should make a prompt offer to acquire the property for the full amount so established. The offer should not be less than the appraised fair value of the property, as approved by the agency head.

(4) The Federal agency should provide the property owner with reasonable information concerning its opinion of the value of his property. If only a part of the property is needed, and if the agency believes that the value of the remaining property is affected, this information should include

(i) The fair value of the entire property immediately before the acquisition.

(ii) The fair value of the property remaining immediately after the acquisition.

(iii) The fair value of the property taken.

(iv) The damages, if any, resulting to the remaining property, and an explanation thereof, and

(v) The benefits, if any, accruing to the remaining property, and an explanation thereof. (5) A property owner should not be required to surrender possession before the Federal agency concerned (i) pays the agreed purchase price, (ii) deposits with the court, for the use of the owner, its estimate of the fair value of the

property, or (iii) deposits the amount of the final judgment in the condemnation proceeding.

(6) Clearing or construction should be so scheduled that an occupant is not compelled to move from a home, business, or farm without at least 180 days written notice of the date by which the move is required.

(7) The owner of a building or other improvement not needed for the project should be given an opportunity to remove it for an amount determined by the Federal agency concerned as its fair value for the purpose of removal, whether or not an agreement is reached on the compensation for the taking

(8) If an owner or tenant is permitted to occupy the property taken on a rental basis under an agreement subject to termination by the Government on short notice, the amount of rent required should not exceed the fair rental value of the property to a short-term occupier.

(9) Condemnation should not be advanced or delayed in order to induce an agreement on price. If an agreement is not possible after a reasonable time, the Federal agency concerned should institute condemnation proceedings, and at the same time, or as soon afterwards as practicable, should file a declaration of taking and deposit the estimated fair value of the property in court for the use of the owner.

(10) A property owner should not be compelled to file an inverse condemnation action (Tucker Act) in order to prove

that the Government has taken his property or any interest therein. The acquisition of property should be accomplished by purchase or condemnation proceedings, and not by deliberate acts of physical taking.

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(11) If a partial taking would leave the owner with an uneconomic remnant, the head of a Federal agency should take the entire property.

(12) In determining the boundaries of a project, the head of a Federal agency should take into account human considerations, including the economic and social effects of the determination on owners and tenants in the adjacent area, in

addition to engineering and other factors. Comment.—This recommendation would

provide nniform standards to guide the land acquisition practices of Federal agencies. It would make it clear that the Congress desires that public agency policies and procedures for the acquisition of real property should be fair and consistent, and should be directed to giving the property owner the full measure of compensation authorized by law promptly, with a minimum of inconvenience, and without forcing him to prolonged negotiations or to costly litigation.

This means that a land acquisition agency should always pay the property owner the full amount of its approved value estimate. It should make this amount available for the use of the owner whether or not he agrees to sell the property at this price. It should do so promptly and in any case before requiring parties in possession to vacate the property. It should provide the property owner with reasonable information regarding the agency's opinion of the value of the property. It should provide sufficient lead time and adequate notice of its possession requirements so that all persons lawfully occupying the property will have a reasonable opportunity to secure suitable replacement property and to reestablish in their new locations.

An agency should neither advance nor delay condemnation as a means of pressure to compel an agreement on price. It should not deliberately impose upon the property owner the obligation to file a lawsuit to prove that his property has been taken (ch. VII, pt. K). It should not take a part of a property, where the result would leave the owner with an uneconomical remnant, and it should take human considerations as well as engineering and other factors into account in fixing project boundaries.

The last mentioned item is illustrated by a bill, H.R. 5407 of the 88th Congress, which passed the House of Representatives, June 16, 1964. The following is extracted from the report of the Committee on the Judiciary:

STATEMENT

Miss Mary Horalek and Miss Eva Horalek, of Blue Rapids, Kans., have sought legislative relief as a result of a situation created by the acquisition of land incident to the construction of the Tuttle Creek Dam and Reservoir project on the Blue River in Kansas. The Army report noted that as of the date of the report the United States had acquired full title to some 33,755 acres of land and that further flowage easements over an additional 27,916 acres had been secured by the Government. The Horalek property with which this bill is concerned is a 15-acre residential tract which adjoined the western boundary

of the former town of Irving, Kans. All of the properties falling within the boundaries of the town of Irving were ac

quired by the Government in connection with the Tuttle Creek project. The town was abandoned and its residents moved away. The result has been to impose a unique burden upon the Horalek sisters and their aged mother who occupy the home.

Prior to the elimination of the town, Miss Mary Horalek and her mother had depended upon the town as the center of their activities. All of the purchasing for the family needs was done in the town. They attended a church in Irving. The town formerly had a post office, business stores, and a beauty shop. In addition, the Missouri Pacific and Union Pacific railroads ran through the small community. After Federal land acquisition had been completed, both railway lines were relocated with the result that there is no public transportation in or to what remains of the townsite.

The Horaleks formerly had a substantial flock of chickens and sold chickens, eggs, and some garden produce. After the town was eliminated, they were unable to get feed without excessive delivery charges and have had to reduce their flock to those required for their own needs. Coal for heating the home must be purchased in a town 30 to 35 miles away, Herkimer, Kans. This too requires a high delivery charge which was not assessed when purchases of coal were possible at Irving, Kans. Mrs. Joseph Horalek, the mother, who is 89 years of age, suffers from a heart condition and arthritis and requires medical attention. Miss Mary Horalek does not drive an automobile and therefore they have to rely upon friends or neighbors for transportation to Blue Rapids for medical attention. Dental work requires a round trip of 20 miles to Waterville, Kans.

The land is improved with a large five-bedroom home which is of stucco construction. The only use for the property in this rural area is farmland. The only offer for purchase of the property has been made by an adjoining landowner who is willing to pay $3,000 for the acreage, but has no use for the improvements.

The Department of the Army in its report to the committee has indicated its opposition to the bill on the ground that it has no need for the property and that its previous land acquisitions were conducted pursuant to the law, and that the Department is opposed to any individual exception to land acquisition programs conducted pursuant to law. The Army report further notes that the detriment suffered by the Horaleks was the result of the taking of other people's property in the vicinity. The Army states that there is no existing legal basis for further compensating them.

Subsequent to the introduction of the bill, the committee was advised that title to the property is in two sisters, Mary and Eva Horalek. The committee therefore has recommended amendments to the bill to reflect this fact. This committee is aware that there is no legal basis

for compensation in this case, for this is the reason that the Horaleks have appealed to the Congress for relief. However, it is the

opinion of the committee that this is a case where legislative
relief is required to temper the effects of an exercise of gov-
ernmental authority. The circumstance that the Horalek
property was on the wrong side of the town boundary is the
reason for the damage suffered in this case. It seems inequi-
table to say that this should be the only consideration in de-
termining whether property is to be acquired. That the Gov-
ernment had the power to make that determination is not ques-
tioned, but this should not be allowed to be a definitive fact
in this case. Clearly, relief should be granted in the form
recommended in the bill, and therefore, the committeo rec-
ommends that the bill, as amended, be considered favorably.

DEPARTMENT OF THE ARMY,

Washington, D.C., February 18, 1964.
Hon. EMANUEL CELLER,
Chairman, Committee on the Judiciary,
House of Representatives.

DEAR MR. CHAIRMAN: Reference is made to your request for
the views of the Department of the Army with respect to H.R.
5407, 88th Congress, a bill for the relief of Mary Horalek,
Blue Rapids, Kans.

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In connection with the Tuttle Creek project, the Government acquired fee title to properties within the corporate limits of Irving and the town was abandoned. Prior to the acquisition of the flowage easement over their land, the owners of the Horalek Farm, an elderly mother and daughter living alone, indicated that the abandonmentof Irving would leave them isolated, with the nearest shopping facilities at Blue Rapids, approximately 442 miles distant and, in view of the resulting hardships, expressed a desire to sell the entire fee title of their property to the Government. The fair market value of the unencumbered fee of the 15-acre tract, immediately prior to the taking of the flowage easement, was appraised at $6,700 and the value of the flowage easement at $750. Since the Department of the Army, generally is authorized to acquire only those interests in land which are needed to operate and maintain the reservoir project and since the larger estate was not required for project purposes, the Government was without authority to accede to the request to acquire fee title to the entire 15-acre Horalek Farm.

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STEPHEN AILES,

Secretary of the Army. When one considers the broad flexibility inherent in the fixing of reservoir project boundaries, it is surprising to find that the Chief of Engineers is without authority to resolve a matter of this kind. In any event, this amendment would make it clear that the Congress expects Federal agency heads to give reasonable consideration to matters of this kind.

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