Memorandum

City of Lawrence

City Attorney’s Office

TO:	David L. Corliss, City Manager
FROM:	Toni R. Wheeler, City Attorney
CC:	Diane Stoddard  and Cynthia Wagner, Assistant City Managers Jonathan Douglass, Assistant to the City Manager Scott McCullough, Director – Planning and Development Services Brian Jimenez, Code Enforcement Manager
Date:	April 25, 2013
RE:	1106 Rhode Island Street

On February 5, 2013, the Governing Body received an update from Planning and Development Services regarding the status of 1106 Rhode Island Street.  This property has been in a dilapidated state and is in violation of the City Code.  Staff attempted to work with the owner’s family to bring the property into compliance with the code, however, those efforts were unsuccessful.  Staff reported that little progress had been made by the property owners regarding implementation of Resolution No. 6972 which ordered the repair or demolition of 1106 Rhode Island Street by July 17, 2012.  The Governing Body on February 5, 2013, directed staff to initiate condemnation proceedings in order to obtain title to the property.  Upon obtaining title to the real property, the City can determine how to best bring the property into compliance with city codes.

Once the condemnation process is complete, and the city has paid just compensation for the property, the City will have fee simple title to the land.  Staff will likely recommend that the property be sold or transferred to a third party so it can be rehabilitated, if appropriate.  While municipalities generally do not have legal authority to condemn property for transfer, sale, or lease to private entities, K.S.A. 26-501b(e) provides an exception to this general rule.  It authorizes the taking of “property which is unsafe for occupation by humans under the building codes of the jurisdiction where the structure is situated.”  The property at 1106 Rhode Island satisfies this exception.  Therefore, condemnation is appropriate in this situation. 

Condemnation Process:

Pursuant to K.S.A. 26-201 the City has the authority to acquire by condemnation, interests in real property, including fee simple title thereto.  The first step in the condemnation process is for the Governing Body to adopt a resolution declaring the necessity of use of the City’s condemnation powers for such purposes and ordering a survey of the land to be condemned.  On March 26, 2013, the Governing Body adopted Resolution No. 7013 and a survey was completed and filed.

Following the filing of a survey with the City Clerk, the Governing Body must then adopt an ordinance authorizing the taking and ordering the land condemned.  The ordinance further authorizes the filing of a petition in Douglas County District Court.  The rest of the eminent domain proceedings are governed by a statutory process.  The main elements of the process are as follows:

• Court approves or disapproves of the use of the City’s condemnation authority.
• If the Court approves, three residents of Douglas County with knowledge of real estate, are appointed as appraisers to provide a value of the lands or interests to be condemned.
• The appraisers must provide notice to the parties of interest which must be published at least 14 days before a hearing.
• At the hearing of the appraisers, the appraisers view the real property and provide a report on the value of the interests condemned.
• The Court must approve the report of the appraisers.
• Either party has 30 days after the filing of the report to appeal.
• Upon payment of the amount determined as just compensation to the Clerk of the Court, the City obtains title to the property.

Action Requested:

Adopt on first reading Ordinance No. 8856 ordering through the exercise of eminent domain the condemnation of fee simple title to private property interests commonly located at 1106 Rhode Island Street, and authorizing the filing of a petition in Douglas County District Court.