Rhode Island's Eminent Domain Laws and Property Rights

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

• Who Can Exercise Eminent Domain Powers?

  The Rhode Island Constitution (Art. I, §16) mirrors the federal constitution in that it recognizes the State’s sovereign power of eminent domain, but restricts its exercise for public uses and requires the payment of just compensation. However, the State’s interpretation of “public use” is very broad. The constitution includes express “redevelopment powers” (Art. 6, §18) authorizing the “clearance, replanning, redevelopment, rehabilitation and improvement of blighted and substandard areas” which it declares to be public uses for which the power of eminent domain may be used. In furtherance of its redevelopment scheme, in 1946, the State enabled the creation of redevelopment agencies in every city and town in Rhode Island and empowered those agencies with eminent domain authority. And, uniquely, Art. 6, §19 constitutionally authorizes the condemnation “of more land and property than is needed for actual construction ... of public highways, streets, places, parks or parkways; provided, however, that the additional land and property so authorized to be acquired or taken shall be no more in extent than would be sufficient to form suitable building sites abutting on such public highway, street, place, park or parkway.” After the road or park is constructed the State may then sell or lease the adjacent land, which it acquired by condemnation.

• What Are the Legal Requirements for Exercising the Power?

  Although the community redevelopment agencies have broad eminent domain authority, each agency has its own rules and procedures for its use. Consequently, the first issue in any condemnation case is whether the taking is for a public purpose and whether the applicable rules and procedures of the authorized condemning authority have been followed.

• What Limitations or Defenses Exist?

  Once the decision to proceed with a public project is made and the acquisition of property necessary for the project is determined by an authorized entity and funded, the grounds to challenge the condemnation are limited. Defenses can, however, be raised as to whether a proper public use exists for the condemnation or whether the prerequisite legal procedures have been honored.

• What Constitutes a Public Purpose?

  Like the U.S. Constitution, Rhode Island’s Constitution limits the use of eminent domain to “public uses,” but the State’s interpretation of that authority is broad. By statute (§42-64.12-6) “all entities delegated eminent domain powers” may acquire property: (a) “for public ownership and use;” (b) “for transportation infrastructure;” (c) “for public utilities;” and (d) to eliminate “an identifiable public harm and/or correct[] conditions adversely affecting public health, safety, morals, or welfare, including, but not limited to, the elimination and prevention of blighted and substandard areas. ...”
  
  After the Supreme Court’s decision in Kelo v. City of New London in 2005, Rhode Island passed the “Rhode Island Home and Business Protection Act of 2008” (§42-64), which sought not to eliminate the use of eminent domain for economic development, but to provide owners with some protections or insured compensation. For example, §42-64.12-7 requires a plan of redevelopment to be approved by the condemning entity’s governing body which should “set forth the purposes of the development, the intended benefits to the community, the necessary infrastructure improvements, the presence and correction of any substandard conditions and/or environmental hazards, and the parcels which will be acquired in order to effectuate the plan. In addition, the plan shall include provisions and/or analyses which can support a rational-basis determination that potential takings by eminent domain inure a preponderance of benefits, to the public with only incidental, benefits to a private party or parties.” In addition, the owner of any property taken for economic development is entitled to be compensated 150% of the property’s fair market value and receive relocation benefits. (§ 42-64.12-8)

• How is Just Compensation Determined?

  The preferred method of determining the fair market value of property in condemnation cases is the use of the comparable sales methodology.

• How is Fair Market Value Defined?

  Fair market value is “the amount of money which a purchaser willing but not obliged to buy the property would pay to an owner willing but not obliged to sell it. As a corollary to the definition, fair market value should be calculated on the basis of the most advantageous and valuable use of the property, sometimes referred to as its highest and best use. Further, the date of the taking is the proper time to perform that calculation. But there is “no talismanic significance to fair market value itself beyond its use as a tool in ascertaining “just compensation.” See, e.g., Warwick Musical Theatre, Inc. v. State, 525 A.2d 905, 910 (R.I.1987) (holding that it was not an abuse of discretion for a trial justice to consider evidence beyond comparable-sales data when the fair market value calculated from that data failed to achieve “just compensation”). Thus, for special purpose properties where the sale of comparable properties is not available the use of the cost approach to value the subject property has been approved.

• What About Recovering Damages to Remaining Property?

  Just compensation includes any diminution in value (i.e. damages) to an owner’s remaining property. Thus, when a condemning authority takes a portion of a landowner's property, it is obligated to pay compensation not only for the part taken, but also for any loss in value, or damages caused, to the property not being taken.

• Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

  Attorney’s fees, expert witness fees, and other litigation expenses and costs incurred by an owner in defending a condemnation action are not compensable.

• Can the Government Take Possession of the Landowner's Property Before Final Compensation is Paid?

  Yes. Once a taking has been authorized, the condemning authority may file a resolution of the authority in the land evidence records of the city or town in which the land is located and deposit in court its tendered compensation. Title to the land, or interest therein, shall vest in the authority and the authority may then take possession of the land. The owner has up to one year to file in court a Petition for Assessments of Damages asserting that additional just compensation is due. If the owner wishes to challenge the taking, they will have to file suit seeking injunctive relief.