Eminent domain - Bike trail through back yard

[pow3rhouse]

What is the name of your state (only U.S. law)? Iowa

I am considering purchasing a property that was recently annexed by the city of West Des Moines. On the city's website I found a Draft of proposed trails which cuts through the middle of the backyard on this property.

http://www.wdm-ia.com/Modules/ShowDocument.aspx?documentid=3685

Is there anyway to get this stopped? Could/would the City use eminent domain for this? I don't understand why the city can't use the former railroad across the street.

Should I hire a real estate lawyer for his opinion? I know many of you would say just find another property but this is in a unique location and very desirable to me (without a trail going through the middle of it.

Thanks,

 

[154NH773]

I am considering purchasing a property that was recently annexed by the city of West Des Moines.

Are you considering buying the property from the city? Do they currently own it?

If the city owns the property, and they want to sell it with a bike trail easement, there's nothing you can do.

Maybe I interpreted your statement incorrectly.

 

[pow3rhouse]

No, I would be buying the property from a private home owner. I discovered the plans for the proposed trail on my own and there is no easement currently setup.

I should mention there is a river running through the property, I would own land on both sides of it and the proposed trail is along one of the sides but above the normal high water mark.

 

[154NH773]

I'm not an expert on eminent domain, although I've litigated (pro se) a taking claim to NH Supreme Court.
Some things to consider:
1. The current owner might grant the easement before you purchase, and you would be out of luck. The price of the property should drop with the added burden on it.
2. You have been forewarned that the city's intention is to place a bike trail through the property, but you went through with the purchase. You would have a hard time fighting an eminent domain claim having that pre-knowledge, however the price you pay for the property should reflect the proposed burden on the property.
3. If you bought the property, you could then negotiate with the city as to the value of the easement and its location. You must be paid the market value of the easement.
Personally, I think you have little chance of preventing the bike trail, and any court fight would be costly and have an uncertain outcome.

 

[Zigner]

I don't understand why the city can't use the former railroad across the street.

Because it likely belongs to the railroad...

 

[TigerD]

Because it likely belongs to the railroad...

And the railroad has deeper pockets than the OP.

DC

 

[pow3rhouse]

Thanks for the advice. I e-mailed the city planner and they said it would be years before anything was built, so hopefully I could petition to route the trail somewhere else. I wouldn't mind if it was next to the road in front of the house (~700' away from the planned one) and would sign an easement for that if that meant they stayed out of the backyard and dividing the property.

I will check with the current owner to see if they granted any easement and adjust my offer if I give one accordingly. I brought up the former railroad because Iowa has several railroads that were converted to bike trails already so I thought this was pretty common.

Thanks,

 

[Kiawah]

I think I'd worry more about those 2am freight trains rolling thru, and blasting their air horns.

 

[drewguy]

This sounds a little bizarre. There are lots of "rails to trails" programs around the US. They take abandoned rail lines and convert them to bike trails. No eminent domain is necessary (typically) because the land already belongs to the RR or there is an easement for the rail lines.

So it seems a little strange that the town is planning to build the path not along the existing abandoned rail line but instead somewhere else. ARe you sure that the survey you have is accurate, or the description of where the trail would go? I would talk further with the town guy.

 

[pow3rhouse]

I am very sure the proposed trail document shows the trail going through the backyard and I verified it with the city planner... He said this is a long term plan and would be several years before any of this would happen but that it was important to connect to other parts of the city. I send him an e-mail asking why the railroad is not utilized and waiting for a response.

 

[justalayman]

they don't want to use the RR property because it is not as attractive at the pathway by the stream.

in a lot of cases, if the RR ran on an easement the RR cannot grant the use of the RR easement to another entity. Often times the agreements were written the land reverts to the original parcel.

anyway, if they are planning on this pathway, I would act with the idea they are going to put a path where they say they are. They have ways of forcing you to comply and I have rarely seen a government walk away from a fight where they lost.