April 10, 2006

 

2006-R-0291

Eminent Domain Statutes

 

By: Christopher Reinhart, Senior Attorney

 

You asked for a list of statutes that authorize the use of eminent domain to take land.  This report updates OLR Report 2005-R-0578 as a result of additional research regarding takings for railroad projects (see OLR Report 2006-R-0167). This report has been updated by OLR Report 2008-R-0193.

summary

This report lists statutes that authorize the use of eminent domain or condemnation.  It focuses on statutes that allow the taking of land and briefly describes who may use the power and for what purposes.  It does not focus on the procedures or restrictions on the use of eminent domain.

 

We group the statutes into five categories based on who may use the power:  the state and state agencies; municipalities and municipal and regional authorities; municipalities and certain corporations; quasi-public agencies; and other entities.

 

We searched the statutes in a number of ways in an attempt to locate every relevant statute.  In addition to the provisions listed in this report, special acts may authorize specific entities to use eminent domain for certain purposes and we did not attempt to compile those provisions.  Some special acts and statutes also designate entities as “municipalities,” thus granting them eminent domain authority.

STATE AND STATE AGENCIES

State

The state can take land under the following provisions.

 

1.     The state can take land for (a) the site of or addition to a state institution or courthouse; (b) an addition to the site of an institution of the state university system, vocational school, or technical college; or (c) the urban sites remediation action program.  The state can also take water from a river, brook, spring, pond, or lake to supply water as the convenience and necessity of the institution require (CGS § 48-9).

 

2.     The state can take land in an approved plan to add or expand state airports (CGS § 13b-44).

 

3.     The state can take land the Department of Public Works (DPW) deems necessary for locating permanent armories (CGS § 27-45).

 

In addition, the state consents to the United States condemning land required for customhouses, courthouses, post offices, arsenals, and other public buildings and for other government purposes (CGS § 48-1).

 

Department of Transportation

 

The Department of Transportation (DOT) can take property under the following provisions.

 

1.     DOT can take property (a) necessary for the layout, alteration, extension, widening, change of grade, or other improvement of a state highway or highway maintenance storage area or garage; (b)  necessary for the layout, construction, maintenance, or use of roads or bridges for military purposes; (c) necessary for constructing ditches, drains, gutters, or other structures to drain a state highway; and (d) required to preserve historical monuments or memorials which must be removed due to construction or reconstruction of a state highway.  DOT may take rights of access or exit from land abutting highways (CGS § 13a-73).

 

2.     DOT can take property necessary or required to construct, alter, extend, widen, change the grade, or improve parkways, freeways, or service highways in the same manner as for state highways (CGS § 13a-26).

 

3.     If DOT cannot prove the location of boundaries or limits of a state highway when challenged about his determination in court, the agency can condemn a right-of-way over land adjoining the traveled portion of the highway as necessary for highway purposes (CGS § 13a-37).

 

4.     DOT can lay out any road as a state highway by acquiring new rights-of-way by condemnation (CGS § 13a-57).

 

5.     In the same way as for state highways, DOT can use eminent domain to take land, additional interests in land or air space as necessary or appropriate to make feasible or enhance the multiple use and joint development of highway rights-of-way and space over or under state highways (CGS § 13a-80f).

 

6.     In the same way as for state highways, DOT can take by condemnation interests in strips of land for improvements of them necessary to preserve, restore, or enhance the scenic beauty adjacent to state highways and acquire land for rest and recreation areas and sanitary and other facilities (CGS § 13a-85a).

 

7.     DOT can condemn property or rights of access and exit from land abutting a federal surface transportation urban program roadway or facility as necessary to construct and maintain the improvements of it (CGS § 13a-98e).

 

8.     DOT can acquire, by condemnation and other means, billboards and other signs along highways and the right to erect such signs (CGS § 13a-123).

 

9.     DOT can condemn land of certain junkyards or scrap metal processing facilities that cannot be screened (CGS § 13a-123f).

 

10.  DOT can condemn an easement to maintain trees, shrubs, and vegetation by state highways (CGS § 13a-140).

 

11.  If requested by the Department of Environmental Protection commissioner, DOT can condemn land necessary or appropriate to develop linear parks along and adjacent to state highways.  For land more than 50 feet from the highway right-of-way, the municipality’s legislative body must approve (CGS § 13a-142b) .

 

12.  The Route 11 Greenway Authority Commission can request the DOT commissioner to condemn property for use as part of the Route 11 Greenway trail system (CGS § 13a-142e, as amended by PA 05-131).

 

13.  DOT can acquire property necessary to construct and maintain commuter parking facilities in the same way as for state highway (CGS § 13b-29).

 

14.  DOT can take property necessary for the operation or improvement of transportation services, in the same manner as for state highways (CGS § 13b-36).

 

15.  DOT can take any airport, restricted landing area, or other air navigation facility owned or controlled by a municipality or other person if necessary to maintain adequate air transportation in the state or for public convenience or safety.  But DOT cannot take a facility owned or controlled by or used as part of research, development, or manufacturing activity without consent.  DOT can take an interest in certain land, buildings, equipment, or facilities sold, leased, or granted in a state airport or state airport site (CGS § 13b-42).

 

16.  Before DOT approves the layout of a railroad or the taking of any land for it or for any change or alteration, it must give reasonable notice to all people with an interest in the land “to attend and be heard.”  The appraisers must also send a notice (CGS § 13b-246).

 

17.  If the view of railroad tracks near where they cross a highway at grade is obstructed by trees, shrubs, or earth, DOT can make appropriate orders after a hearing and reasonable notice to the relevant companies, town officials, and adjoining landowners.  Any order must specifically set limits within which land can be taken and the nature, purpose, and specific limits of easements authorized to be taken.  The expense of any order is paid by the owner of the land on which the obstruction is located (CGS § 13b-281).

 

18.  When a highway passes over or under a railroad and public convenience or necessity requires a change in the highway, the town can petition DOT for changes.  DOT must schedule a hearing and provide notice to the petitioners, company, relevant municipalities, and adjacent landowners as reasonable.  DOT can issue orders for public convenience and necessity or safe and suitable operation of the railroad.  DOT has the same powers as for removing grade crossings and can take land (CGS § 13b-282).

 

19.  As necessary, DOT can acquire land or rights of entrance and exit from land abutting certain projects regarding structures around tracks in the same way as for state highway purposes (CGS § 13b-283).

 

20.  DOT can authorize private crossings that cross railroad tracks at grade if necessary for a community’s economic welfare (CGS § 13b-292).  The provisions of CGS § 13b-281 apply (these are described above and include takings).

 

Department of Environmental Protection

 

The Department of Environmental Protection (DEP) can take property under the following provisions.

 

1.     DEP has the authority to acquire land, water, or interests in them by condemnation as necessary to carry out projects for paths and parks near roads (CGS § 13a-142c).

 

2.     DEP can condemn land, water, or interests in them as necessary for a linear park along Route 11 (CGS § 13a-142d).

 

3.     DEP can take land, water, and rights in them by eminent domain for any purpose or activity related to or compatible with DEP functions (CGS § 22a-25).

 

4.     DEP can condemn land when necessary to abate a threat of disease to humans or animals from insect vectors, following the eminent domain provisions for municipal corporations (CGS § 22a-45b).

 

5.     DEP can use eminent domain to acquire property needed in connection with improvements under the watershed soil conservation provisions, but not for property owned or used by public service companies (CGS § 22a-320).

 

6.     DEP sets stream channel encroachment lines and if existing structures or encroachments within the lines are a hazard to life and property in event of flood, DEP can take the land and structure under the eminent domain chapter and remove the encroachment (CGS § 22a-345).

 

7.     DEP can take land by eminent domain for the public purposes of acquiring open spaces for recreation (CGS § 23-9).

 

8.     DEP can acquire property by condemnation as needed in connection with maintenance, repairs, reconstruction, or remodeling of state-owned dams (CGS § 23-9a).

 

9.     DEP can acquire land by eminent domain for the purpose of protecting or enhancing scenic beauty, as may be necessary to establish, protect, and maintain the Appalachian National Scenic Trail (CGS § 23-67).

 

10.  DEP can use non-structural measures of flood control, including acquiring property reasonably necessary for use in connection with flood control systems or projects by condemnation (CGS § 25-76).

 

11.  DEP can take property by eminent domain for purposes of a flood control project with the U.S. Army (CGS § 25-80).

 

12.  DEP can acquire property by condemnation that is needed in connection with maintaining, repairing, reconstructing, or remodeling state-owned dams (CGS § 26-3a).

 

13.  DEP can acquire tidal wetlands by condemnation in order to maintain, improve, protect, limit the future use of, or otherwise conserve them (CGS § 26-17a).

 

14.  DEP can use condemnation to acquire essential habitat or interests in them for conservation of endangered, threatened, or species of special concern (CGS § 26-309).

 

Other State Agencies

 

Other state agencies can take land under the following provisions.

 

1.     DPW may use eminent domain to acquire property to develop the Connecticut Capitol Center (CGS § 4b-72).

 

2.     The Department of Economic and Community Development (DECD) commissioner can take land by eminent domain to encourage and facilitate construction and rehabilitation of housing to be purchased by low and moderate income families and rehabilitation by or purchase of existing housing by such families (CGS § 8-82).

 

3.     Under the urban sites remedial action program, the DECD commissioner in consultation with the DEP commissioner can condemn polluted commercial or industrial property to remediate the pollution and lease or sell the property to promote business growth or expansion through the reuse or redevelopment of the property (CGS § 22a-133m).

 

4.     The DPW commissioner can condemn property for the purpose of siting a regional low-level radioactive waste facility (CGS § 22a-163w).

 

5.     The Office of Policy and Management (OPM) secretary can take certain property related to the Adriaen’s Landing project (CGS §§ 32-655 and -658).

 

MUNICIPALITIES and MUNICIPAL AND REGIONAL AUTHORITIES

 

Municipalities, municipal authorities, or regional authorities can take land under the following provisions.

 

1.     A municipality can condemn property as the purposes of the municipality or public use or purpose require (CGS § 7-148).

 

2.     To aid an authority and cooperate in planning, undertaking, acquiring, constructing, or operating a public facility, a municipality can acquire property in its name by condemnation (a) for a public facility, (b) for widening existing roads or for new roads to the facility, or (c) partly for these purposes and another municipal purpose (CGS § 7-130o).

 

3.     A municipality’s legislative body can vote to condemn land in an area designated as open space land on a municipal development plan (CGS § 7-131b).

 

4.     A parking authority or parking division, in the name of the municipality, can condemn property necessary for or incidental to construction, maintenance, operation, or expansion of off-street parking facilities (CGS § 7-204).

 

5.     A municipality, by its water pollution control authority, can condemn property necessary or desirable for use in connection with a sewerage system (CGS §§ 7-245 and 247).

 

6.     Municipal and regional resources recovery authorities can acquire property, by "condemnation for public purposes" and other means, but municipal authorities cannot condemn privately owned solid waste disposal areas (CGS § 7-273bb).

 

7.     To aid a port authority and cooperate in planning, undertaking, acquiring, constructing, or operating a port facility, a municipality can acquire property in its name by condemnation (a) for the facility, (b) for widening existing roads or for new roads to the facility, or (c) partly for these purposes and another municipal purpose (CGS § 7-329n).

 

8.     A municipal corporation can take property located within a neighborhood revitalization zone that is identified in a strategic plan, to deal with substandard, insanitary, and blighted neighborhoods (CGS § 7-600 et seq. and 48-6).

 

9.     Housing authorities have the power to acquire property by eminent domain that is necessary for its purposes (CGS § 8-50).

 

10.  If the Connecticut Housing Authority is designated as a municipality’s redevelopment agency, it has the same powers as a redevelopment agency.  This includes the use of eminent domain with approval of the municipality’s legislative body (CGS § 8-121).

 

11.  Under the redevelopment statutes, a redevelopment agency can acquire property by eminent domain with approval of the municipality’s legislative body.  The stated statutory purpose of these provisions is to deal with substandard, insanitary, deteriorated, deteriorating, slum, or blighted areas and acquiring property to eliminate those conditions, prevent their recurrence, remove structures, improve the sites, and dispose of the property for redevelopment.  The statutes state that this is a public use for which eminent domain can be utilized (CGS § 8-124 et seq.).

 

12.  A redevelopment agency has the powers necessary or convenient to carry out urban renewal plans and projects, including powers conferred on redevelopment agencies for redevelopment projects.  This includes eminent domain (CGS § 8-143).

 

13.  If a municipality’s legislative body finds that acquiring non-contiguous single parcels designated in a community development plan is necessary to prevent the spread of slum or blight, the municipality or the community development agency acting in its name can acquire the property.  The land can be acquired as under the redevelopment statutes, which includes eminent domain (CGS § 8-169e).

 

14.  An urban homesteading agency can recommend to the municipality’s legislative body that abandoned property be taken by eminent domain (CGS § 8-169r).

 

15.  A development agency can, with approval of the legislative body and in the municipality’s name, acquire property by eminent domain within the area of a development plan (CGS § 8-193).

 

16.  A redevelopment agency acting as a housing site development agency can condemn property for the purpose of a housing and community development project (CGS § 8-216b).

 

17.  An urban rehabilitation agency can recommend to the municipality’s legislative body that abandoned industrial and commercial property be taken by eminent domain (CGS § 8-293).

 

18.  A local or regional school district can take land by eminent domain for a public school building or a necessary addition, outbuildings, or convenient accommodation of its schools, with approval of the town’s legislative body (CGS § 10-241a).

 

19.  A municipality or municipalities establishing a municipal airport  may take land, with municipal approval, that is necessary to establish it.  DOT must approve the site.  A municipality can take land necessary to expand or approve the airport if the municipality where the land is located approves and DOT determines it is required for public convenience or safety (CGS § 13b-43).

 

20.  A municipality and its harbor improvement agency undertaking a harbor improvement project has the powers and authority granted to a municipality and redevelopment agency for redevelopment or urban renewal projects.  This includes eminent domain (CGS § 13b-56).

 

21.  For a highway crossed by a railroad, if a party making changes to a highway cannot agree with the owner of land or other property to be taken or removed under a decision by DOT, damages are assessed in the same way as for land taken by railroad companies (CGS § 13b-280).  (Case note states that this section gives towns the power to take land for changes in a highway.)

 

22.  A regional water pollution control authority can acquire property by condemnation for public purposes.  An authority can condemn property which it determines is necessary or desirable for use in connection with a wastewater system (CGS §§ 22a-501 and –504 et seq.).

 

23.  A municipal flood and erosion control board can condemn land necessary for use in connection with a flood or erosion control system (CGS § 25-86).

 

24.  Under the economic development and manufacturing assistance act, an agency implementing a develop plan can, with approval of the municipality’s legislative body and in the name of the municipality, condemn property that is necessary or appropriate for the project as identified in the plan (CGS § 32-224).

 

25.  Regarding a town house or town hall, a town can take land for (a) the site or an addition to the site that is necessary or convenient for the purpose, (b) necessary outbuildings and convenient accommodations for them, and (c) light and air for them (CGS § 48-3).

 

26.  Towns have the same powers as school districts to take land for schoolhouses and other school purposes (CGS § 48-5).

 

27.  A municipal corporation has the power to condemn land if it (a) has the right to purchase land for its municipal purposes, (b) voted to purchase land in accordance with its charter or the statutes, and (c) cannot agree on a price with the owner.  A municipal corporation can also take property within a neighborhood revitalization zone (mentioned above, CGS § 7-600 et seq.) (CGS § 48-6).

 

28.  A town, borough, or fire district that votes to acquire land for a public square, common, or park can condemn the land if they cannot reach an agreement with the landowner.  Land occupied for church or cemetery purposes cannot be taken (CGS § 48-7).

 

29.  Under certain circumstances, a town selectman can condemn land for a building to protect town records against fire.  Land of a religious or ecclesiastical society where a church building is erected cannot be taken without consent (CGS § 48-8).

MUNICIPALITIES AND CERTAIN CORPORATIONS

A town, city, borough, or corporation authorized to supply inhabitants with water may take land, springs, streams, or ponds as the Superior Court on application deems necessary for the supply (CGS § 25-42).

 

A town chief executive can petition DOT when a railroad has been laid out, located, or constructed so near a highway that he believes it endangers the public.  DOT, after reasonable notice to the railroad company to appear and be heard, can order a change in the highway if public safety requires it and the change is practicable.  If the company or town ordered to do the work cannot obtain necessary land by agreement, it can take land necessary to carry out the order (CGS §§ 13b-285, -287).

QUASI-PUBLIC AGENCIES

Certain quasi-public agencies are authorized to take land for certain purposes.

 

1.     The Connecticut-New York Railroad Passenger Transportation Compact authorizes New York’s Metropolitan Transportation Authority and Connecticut’s Public Transportation Authority, where permitted under their enabling laws, to acquire property through eminent domain of the New York, New Haven, and Hartford Railroad and its successors that is reasonably expected to be necessary, convenient, or desirable to continue or improved service.  PA 05-210 substitutes DOT for the authority, effective when New York adopts similar legislation (CGS § 16-343).

 

2.     The marketing authority must establish, acquire, develop, and operate farmers’ market facilities.  If the authority cannot agree with the landowner to acquire land required for a regional market or an addition to one, it can file a petition in Superior Court in the name of the state to take the property (CGS §§ 22-64 and –66).

 

3.     Connecticut Resources Recovery Authority (CRRA) can acquire real property through "condemnation for public purposes" and other means (CGS § 22a-266).

 

4.     CRRA can bring condemnation proceedings after adopting a resolution that necessary property is not otherwise obtainable.  The law imposes certain restrictions regarding zoning (CGS § 22a-276).

 

5.     CRRA can condemn real property to establish an ash residue disposal area (CGS § 22a-285a).

 

6.     The Lower Fairfied County Convention Center Authority can acquire land by condemnation (CGS § 32-204).

 

7.     The Capital City Economic Development Authority can acquire property by condemnation (a) in connection with the convention center facilities, hotel, on-site related private development, and related infrastructure improvements or (b) that is necessary or desirable to effectuate the purposes of the authority for the convention center project and hotel (CGS §32-602).

OTHER ENTITIES

 

Certain other entities are authorized to take land for certain purposes.

 

1.     A municipal electric energy cooperative can use condemnation or eminent domain to acquire property to carry out the purposes of the chapter (CGS §§ 7-233c, 233e, and –233k).

 

2.     A transit district can acquire property by eminent domain for its purposes, subject to approval of the legislative body of the municipality where the property is located.  It can also use eminent domain to acquire certain franchises (CGS § 7-273e).

 

3.     A port authority can acquire property in its name by condemnation.  It may condemn property necessary for the development of port facilities (CGS §§ 7-329c and -329f).

 

4.     A company operating railroad tracks can, with DOT approval, take land in a discontinued highway (CGS § 13b-205).

 

5.     A company can alter the location of its railroad line to change the radius of its curves, width of its layout, extent of depot grounds, slopes, or embankments; straighten and improve lines; and extend sight lines when approved by DOT.  It can take land for additional tracks, turnouts, and stations, and to supply water for engines and stations.  DOT must sign the takings certificate (CGS § 13b-248).

 

6.     A company can add to the number of its main railroad tracks and, with DOT approval, take land for this purpose (CGS § 13b-250).

 

7.     When a company takes land for railroad purposes and the taking cuts off other land from practical access to the highway, the company can take additional land with DOT approval to provide a convenient way to the highway for the use of the owner of the land cut off (it remains a private way for the owner’s use).  Land can be acquired as provided by law for railroads taking land (CGS § 13b-253).

 

8.     When a highway is constructed across a railroad, the company must construct the crossing as approved by DOT and can take land for the purpose.  Beginning October 1, 1989, public railroad crossings at grade require a special act of the General Assembly.  The Transportation Committee must request DOT to conduct an investigation including public hearings, proposed legislation, and a detailed report (CGS § 13b-268).

 

9.     Municipal officials can petition DOT to alter the way a highway and railroad cross for public safety.  DOT must schedule a hearing and provide notice to the petitioners, company, relevant municipalities, and adjacent landowners as reasonable.  Railroad companies can take land for this purpose (CGS § 13b-270).

 

10.  When DOT determines public safety requires altering a highway crossed at grade by a railroad, it can order alterations after a hearing with reasonable notice to the railroad companies, town officials, and adjoining landowners.  Railroad companies can take land that DOT finds necessary for this purpose but a special finding of public necessity and convenience is not required (CGS § 13b-274).

 

11.  Railroads, with DOT approval, can condemn rights to private crossings over railroads (CGS § 13b-289).

 

12.  A corporation that constructs or operates a natural gas pipeline that has a federal certificate of public convenience and necessity authorizing it to construct and operate a pipeline can acquire property by condemnation that is necessary to construct, operate, maintain, and alter the pipeline and install compressor stations, appliances, and other equipment.  The law excludes certain public property and railroad and public utility company land from the taking but it allows the authority responsible for the land or DPUC to approve construction in some circumstances  (CGS §§ 16-263 and -265).

 

13.  Cemetery associations can take land to enlarge a cemetery’s limits by filing a complaint in Superior Court.  The court must determine that the enlargement is necessary and proper (CGS §§ 19a-296 and 48-18).

 

14.  A non-profit hospital can file a complaint with the Superior Court to take land to enlarge its public facilities by adding contiguous land and buildings, if the Office of Health Care Access approves.  The court must find the enlargement necessary and proper.  The land can only be used for the public purpose listed in the complaint.  Land dedicated or reserved as open space, park land, or other recreational land and town, city, or borough land cannot be taken (CGS § 19a-645).

 

15.  A cooperative under the electric cooperative act can use eminent domain in the same way as other corporations constructing or operating electric transmission and distribution lines or systems (CGS § 33-221).

 

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