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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 86628
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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The city of Johnston IA is planning on building a bike trail

Resolved Question:

The city of Johnston IA is planning on building a bike trail next year that will extend 15 feet from the road (NW Beaver Drive) onto my property. Constructing the trail will destroy trees, reduce privacy and enjoyment of property (9083 NW 73rd St) and compromise drainage, which will threaten our driveway. What can I do to stop them?
Submitted: 9 months ago.
Category: Real Estate Law
Expert:  Ely replied 9 months ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation.

I am afraid I have some good news and some bad news. I will begin with the bad news first, but then will go on to the good news.

BAD NEWS
There is a doctrine in law called eminent domain. In essence, it dictates that a government (local, state, or federal), can take private land if it feels that this land is needed for reasonable development of the area. It is also mentioned in the Iowa Constitution and is fully accepted in Iowa as well as other states. Bormann v. KOSSUTH COUNTY BD. OF SUP'RS, 584 NW 2d 309 - Iowa: Supreme Court 1998 (general discussion).

So they can take that part of the property. I am afraid that there is little that can be done if they are insistent.

That is the bad news.

GOOD NEWS
Eminent domain requires that the owner be compensated for their property. "Private property shall not be taken for public use without just compensation being paid therefor." Article I, section 18, Constitution of Iowa, I.C.A. Traditionally, the government compensates the landowner handsomely for the property and the inconvenience. One can demand recompense. If it is not offered and/or if it is too little, the amount may be appealed to the Court and the Court makes the determination of what is to be paid. The Court often rules well in landlord's favor and the amount may be even more than the land itself is worth.

I hope this helps and clarifies. Good luck.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

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Customer: replied 9 months ago.

Ely: thanks! What if what they propose may damage my property, e.g., filling in a culvert that now provides drainage from the driveway that's held up by a rock wall? Can compensation include loss of privacy / enjoyment, loss of the value of trees removed in the process?

Expert:  Ely replied 9 months ago.
Ely: thanks!

You are welcome!

What if what they propose may damage my property, e.g., filling in a culvert that now provides drainage from the driveway that's held up by a rock wall? Can compensation include loss of privacy / enjoyment, loss of the value of trees removed in the process?

Of course. The compensation must be for the whole taking - not just the value of the land, but also the inconvenience, and damage to any other part of the land. In other words, "just compensation." Article I, section 18, Constitution of Iowa, I.C.A.

If their offer is not enough, and no agreement may be made, then the Court decides, and again, the Court normally allows the eminent domain taking, but also compensates the owner pretty well, taking into account not just the value of the land, but also the inconvenience, and damage to any other part of the land.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 86628
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
Ely and other Real Estate Law Specialists are ready to help you
Customer: replied 9 months ago.

Ely: I have additional information re the bike trail planned for our property that I would like to share with you, as well as a couple of questions.


 


I had the city and the contractor visit my property to update me on their plans.


 


Are you available?

Expert:  Ely replied 9 months ago.
Hello.

I am.
Customer: replied 9 months ago.

They plan on starting next spring and will take 3 years to build the trail. They may start on my end or the other end. If they start at the other end it will be 2 - 3 years before they come my way.


 


Plans are not finalized. However, the trail will be 9 feet from the road and 10 feet wide, so it will be 19 feet into my property.


 


They also need a 5 foot temporary easement to build the trail. Many trees will be cleared, privacy lost and other issues.


 


When do I begin negotiation for the compensation?


Is there special consideration for the temp easement?


Do I have to grant the temp. easement?


What leverage, if any do I have?

Expert:  Ely replied 9 months ago.
When do I begin negotiation for the compensation?

As soon as possible. One does not have to wait until a certain time before they seize unto property to engage in negotiation.

Is there special consideration for the temp easement?

Not in that if you mean do they get extra right to take the easement via eminent domain. The same doctrine applies.

Do I have to grant the temp. easement?

No. They'd have to get it via eminent domain.

What leverage, if any do I have?

Filing a suit and having the Court order their construction halted possibly and thus, derailing all their plans, while it decides on a payout for you, if negotiations cannot come to an agreement.
Customer: replied 9 months ago.

As a next step, would it make sense for me to call the city person in charge of this, share my concerns and explore how to open up negotiation regarding compensation? He may not be the person to negotiate, I'd guess that they have an attorney do this.


 


They may push back saying the plans are not final, however, the scope of the damage is clear to a certain extent.


 


They could move the trail 4 feet closer to the road, which would mitigate some of the damage. Perhaps I could influence their decision making.


 


Thoughts?

Expert:  Ely replied 9 months ago.
As a next step, would it make sense for me to call the city person in charge of this, share my concerns and explore how to open up negotiation regarding compensation? He may not be the person to negotiate, I'd guess that they have an attorney do this.

Yes. However, one should also set a deadline not too far from now in regards XXXXX XXXXX responding. If they do not respond by that time to one's certified letter, then one should consider retaining counsel and filing.

They may push back saying the plans are not final, however, the scope of the damage is clear to a certain extent.
They could move the trail 4 feet closer to the road, which would mitigate some of the damage. Perhaps I could influence their decision making.
Thoughts?


Everything is subjective. Remember that one may wish to be a "thorn in their side" to have them take one seriously. This means derailing their project by threatening or actually filing suit.
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 86628
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
Ely and other Real Estate Law Specialists are ready to help you

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