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Project Management and Involvement in the Condemnation Process

Project Management and Involvement in the Condemnation Process Highway Project Classification
Capital Improvement Projects Safety Projects Asset Management Projects Maintenance Projects
1. Introduction x x x x
2. Project Manager’s Role During the Condemnation Process x x x x
3. Preparing for Possible Litigation x x x x
4. Depositions x x x x
5. Handling Summons or Subpoena x x x x

1. Introduction

Once reasonable attempts to negotiate for a property have been exhausted, the Cabinet initiates a condemnationThe process of exercising the right of eminent domain. It is the legal process necessary to take private property for public use, with payment made to compensate property owners. action. After verifying that reasonable measures were taken to settle with the property owner and that it is unlikely further negotiations would be productive, the District Right of Way (ROW) Supervisor sends a recommendation for condemnation to the Director of the Division of Right of Way and Utilities, who then submits a written request to the Office of Legal Services recommending a condemnation action be initiated. Under the best of circumstances this process can take between 99 and 106 days from case assignment to right of entry(ROE)The legal right to take possession of real estate in a peaceable manner.. If a property owner decides to file a right to take challengeWithin the allocated answer period, the property owner(s) challenge KYTC’s right to take of the property needed for a project. The property owner(s) must prove fraud, bad faith, or abuse of discretion in order to prevail in a right to take challenge. within the specified time period, this can delay a project’s schedule and add additional time (months, or even years if there an appeal) to the condemnation process.

General condemnation process timelines can be found in the Project Manager’s Boot Camp Condemnation Timeline Handout and Right to Take Challenge Timeline Handout. For strategies on mitigating right to take impacts on the time it takes to obtain right of entry, refer to KTC Report 1726 Understanding and Efficiently Managing Right-to-Take Challenges in Kentucky

 Side Note

Condemnation is also necessary whenever KYTC cannot establish the rightful ownership of a property or a partial property interest.

The Project Manager (PM) provides the District ROW Supervisor and KYTC attorney relevant plan sheets, right of way records, and property descriptions for any parcel recommended for condemnation.  The PM may also be asked to assist in preparing mediation or trial exhibits that may be needed during legal proceedings.  The project manager may also be asked to assist in identifying documents needed to respond to a discovery request from the property owner.

For detailed information on the condemnation process, refer to the HKP article Condemnation.

2. Project Manager’s Role During the Condemnation Process

During the condemnation process, the PM may be asked to discuss the project and its impacts on the parcel in question with the KYTC-assigned attorney. If appropriate, this attorney may ask the PM to attend a meeting with the property owner to further explain the project impacts, better understand their concerns, and perhaps work out a solution that will help expedite resolving the case.

As during normal ROW negotiations, the PM may be asked to review requested changes to ROW plans proposed by the property owner and their representative during the condemnation process. For further information, refer to the Right of Way Manual (ROW-1001 and ROW-1004).

3. Prepare for Possible Litigation

PMs must maintain clear and concise documentation, so they are prepared to explain a project and actions taken during the design process. They must take detailed minutes during the Preliminary and Final Inspections. Providing clear, detailed information in the Design Executive Summary is very important since it records decisions made on a project.

 Side Note

Where possible, use liability neutral language in project reports and documents. This means using words such as can, should, may, consider, and preferable instead of words that mandate actions like will, shall, must, ensure, and essential.

In addition to taking detailed project meeting minutes, whenever a PM meets with a property owner(s), it is very beneficial to document and take minutes of these meetings. Minutes should describe when and where the meeting occurred, who attended, and what was discussed.  It should never include opinions about either the property owner or their requests.

If the District Office has a District Attorney on staff, PMs should engage them early in project development for advice when difficult issues arise related to condemnation. PMs are responsible for submitting all necessary design related information to the District Attorney for the condemnation action. If a District does not have an in-house attorney, the PM can ask the District ROW Supervisor to recommend a point of contact to discuss project-related concerns with and seek advice from.

4. Depositions

A depositionTestimony made under oath and taken down in writing by an authorized officer of the court, typically in an out-of-court setting before trial. is a witness’s sworn out-of-court testimony. It can be used to gather information as part of the discovery process. When giving a deposition, PMs should follow the tips below.

  • Dress professionally.
  • Do not try to win the case in the deposition.
  • Maintain your composure.
  • Listen carefully to the question and answer only the question asked.
  • Answer questions honestly.
  • Do not volunteer information. Keep your answers short. If a yes or no answer is requested, give a yes or no answer.
  • Do not speculate.
  • Pause and think before answering a question
  • If you do not understand a question, ask the attorney to clarify the question
  • If you do not know or cannot remember, do not hesitate to say I do not know or I cannot remember
  • There is no such thing as unofficial or off-the-record communications
  • Unless you are asked by the attorney representing the Cabinet to be an expert witness and offer opinions, you are a fact witness. Limit your testimony to facts.

5. Handling a Summons or Subpoena

Sometimes a KYTC employee might receive a summonsA written statement that is delivered by the sheriff and used to give notice to the person that an action has been filed against him or her. or a subpoenaA written directive to appear at a certain time and place to provide testimony on a specified matter. because of a connection between the employee and a Cabinet project or some other work-related incident involving KYTC. Given the timelines involved, if an employee is served with a summons or subpoena, they must take it to their District legal office at the earliest possible opportunity.

6. Associated Articles

7. Reference Documentation

KYTC Right of Way Guidance Manual:

https://transportation.ky.gov/Organizational-Resources/Policy%20Manuals%20Library/RightOfWay.pdf

Project Manager’s Boot Camp (Articles by Pam-Clay Young):  

How to Survive a Deposition, Condemnation Timeline Handout and Right to Take Challenge Timeline Handout

Understanding and Efficiently Managing Right-to-Take Challenges in Kentucky: Clay-Young, P., Waddle, S., Gibson, B., KTC Report 1726: Understanding and Efficiently Managing Right-to-Take Challenges in Kentucky

Project Management Guidebook Knowledge Book:

Access the complete Knowledge Book here: Project Management Guidebook

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