4/18/1989 - Laserfiche WebLink

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BRADY LAWSUIT AND SETTLEMENT OFFER Assistant County Attorney Collins reviewed the following memo: TO: The Board of County Commissioners THROUGH: ChareN. Vitunac - County Attorney FROM: William G. Collins 11 - Assistant County Attorney DATE: April 12, 1989 SUBJECT: Brady Lawsuit and Settlement Offer On March 27, 1989 the County was sued by Kenneth and Mae Brady for inverse condemnation. The suit arises out of an agreement to reserve right-of-way for the widening of 4th Street prior to the issuance of a building permit. Such reservations were a requirement of a County ordinance which was in effect for the first half of 1988 until the County Commission suspended its operation upon the recommendation of the County Attorney's Office. ANALYSIS: There are a number of cases in the Fourth District Court of Appeal holding that reservation agreements for future road widening are invalid and unenforceable. The Supreme Court of Alabama has held that unless a local government decided to abandon the reservation, the property owner is entitled to compensation, and that should the local government abandon the reservation, the property owner would still be entitled to compensation for a period during which the reservation existed. This is consistent with the United States Supreme Court holding in First English Evangelical Church "that where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective." (emphasis added) It may be arguable whether the reservation agreement denied the Bradys of "all use" of their property, and the Supreme Court also stated in First English "that in the context of condemnation proceedings, a taring does not occur until compensation is determined and paid, and ... a reduction or increase in the value of property may occur by reason of legislation for or the beginning or completion of a project, but such changes in value are incidents of ownership. They cannot be considered as a 'taking' in the constitutional sense." ALTERNATIVES: 1. The County can release the reservation and probably argue successfully that no taking has occurred. This would essentially be a no-win situation for all parties. The Bradys would take nothing, the County would take nothing, and the legal expenses could mount, and the property will ultimately need to be acquired. APR 1 19U9 63 [ AS, c E 6K ( ", 6 PO2