Objection to Declaration of Taking - Alaska

OBJECTION TO DECLARATION OF TAKING — ALASKA

TABLE OF CONTENTS

1. Caption
2. Introduction
3. Grounds for Objection
4. Request to Set Aside or Stay the Declaration / Bar or Defer Possession
5. Motion to Increase the Deposit and to Withdraw Funds Without Waiver
6. Reservation of Just Compensation, Severance Damages, Interest, Costs, and Fees
7. Demand for Hearing and for Jury on Compensation
8. Prayer for Relief
9. Verification
10. Signature and Service Blocks
11. Certificate of Service
12. Alaska Practice Notes
13. Sources and References

1. CAPTION

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

[________________________________] JUDICIAL DISTRICT AT [________________________________]

Case No. [________________________________]

Parcel / Project No(s).: [________________________________]

OBJECTION TO DECLARATION OF TAKING; MOTION TO BAR/DEFER POSSESSION AND TO INCREASE THE DEPOSIT

2. INTRODUCTION

Defendant(s) [LANDOWNER NAME(S)] ("Owner"), owner(s) of an interest in the real property identified as Parcel No. [________], more particularly described in Exhibit A (the "Subject Property"), by and through undersigned counsel, object to the Declaration of Taking filed by [CONDEMNOR NAME] ("Condemnor") and state:

1. On [__/__/____], the Condemnor filed a Declaration of Taking under AS 09.55.420 and deposited $[____________] as its estimate of just compensation under AS 09.55.430(6) and AS 09.55.440(a).

2. Owner files this Objection within the time allowed by law. Under AS 09.55.450(a), the Condemnor may not be granted the right of entry until the time to object has run or any timely objection has been heard. Owner objects to the right to take, to public use and necessity, to procedural sufficiency, and to the adequacy of the deposit, and asks the Court to set aside or stay the Declaration, bar or defer possession, and increase the deposit.

3. GROUNDS FOR OBJECTION

Owner asserts the following grounds (check all that apply):

3.1 Lack of Authority / No Right to Take

• ☐ The Condemnor lacks statutory authority to take the Subject Property, or the interest sought, by eminent domain under AS 09.55.240, or has exceeded its delegated authority.
• ☐ A municipal condemnor has invoked the declaration-of-taking procedure for a purpose NOT authorized for municipalities under AS 09.55.420 (i.e., outside street/highway, off-street parking, school, sewer, water, telephone, electric, other utility, or slum clearance).
• ☐ The declaration-of-taking procedure is barred as to the Subject Property because it is property of a rural electrification/telephone cooperative or a federally assisted nonprofit (AS 09.55.420).
• ☐ The taking is for the purpose of transferring title to another private person for economic development, in violation of AS 09.55.240.

3.2 Lack of Public Use or Purpose

• ☐ The taking does not serve a public use authorized by law (AS 09.55.240, AS 09.55.270(1)).
• ☐ The stated public purpose is pretextual; the actual beneficiary is a private party.

3.3 Lack of Necessity

• ☐ The taking is not necessary to the asserted use (AS 09.55.270(2)).
• ☐ The Subject Property is already appropriated to a public use, and the Condemnor's proposed use is not a more necessary public use (AS 09.55.270(3)).
• ☐ The taking is not located "in a manner compatible with the greatest public good and the least private injury" (AS 09.55.430(7), AS 09.55.460(b)).
• ☐ Feasible alternative routes/footprints exist that the Condemnor rejected without adequate analysis.

3.4 Excessive Taking / Estate Taken Too Broad

• ☐ The Condemnor seeks more land, or a greater estate or interest, than is reasonably necessary; the Court should limit the quantity taken under AS 09.55.290.
• ☐ The estate described in the Declaration (e.g., fee where an easement would suffice) exceeds the project's needs.

3.5 Procedural and Notice Defects in the Declaration / Deposit

• ☐ The Declaration omits or defectively states one or more contents required by AS 09.55.430 (authority; public use; description sufficient for identification; estate or interest; map or plat; estimated just compensation; statement of necessity/least-private-injury).
• ☐ The deposit required by AS 09.55.440(a) was not made, was incomplete, or does not match the estimate stated in the Declaration.
• ☐ For an off-street-parking taking, the four-weeks' published notice and public hearing required by AS 09.55.420 were not held.
• ☐ Defective or untimely process/service under Alaska R. Civ. P. 72.
• ☐ Other procedural defect: [________________________________]

3.6 Inadequacy of the Deposit / Estimated Compensation

• ☐ The deposited amount ($[____________]) is substantially below fair market value and does not constitute just compensation under Alaska Const. art. I, § 18.
• ☐ The estimate fails to account for: ☐ severance/remainder damages ☐ loss of or impairment of access ☐ improvements/fixtures ☐ cost to cure ☐ other: [________________________________]

3.7 Defective Good-Faith Offer / Pre-Suit Acquisition Conduct

• ☐ The Condemnor failed to engage in good-faith acquisition negotiation and/or to make a bona fide written offer before filing, contrary to applicable acquisition policy and 42 U.S.C. § 4651 (federally assisted projects).
• ☐ Other: [________________________________]

4. REQUEST TO SET ASIDE OR STAY THE DECLARATION / BAR OR DEFER POSSESSION

4.1. Owner requests that the Court sustain this Objection and set aside the Declaration of Taking, or in the alternative limit the quantity or estate taken to what is necessary (AS 09.55.290).

4.2. Owner requests that the Court bar or defer the Condemnor's right of entry. Under AS 09.55.450(a), entry may not be granted until the time to object has run or this Objection has been heard. Owner asks that no order of possession issue, and that any possession be stayed, pending resolution of the right-to-take and necessity grounds.

4.3. ☐ Owner reserves the right to seek restoration of the property and damages under AS 09.55.460(b) if the Court finds the taking was not by necessity for a public use in a manner compatible with the greatest public good and least private injury.

5. MOTION TO INCREASE THE DEPOSIT AND TO WITHDRAW FUNDS WITHOUT WAIVER

5.1. Owner moves the Court to increase the deposit to an amount reflecting the Condemnor's good-faith estimate of full just compensation, supported by appraisal, because the current deposit is inadequate under Alaska Const. art. I, § 18 and AS 09.55.430(6).

5.2. Owner moves, pursuant to AS 09.55.440(b), for an order directing that the deposited funds (or part) be paid to Owner on account of the just compensation to be awarded. Owner makes this withdrawal request WITHOUT PREJUDICE and WITHOUT WAIVER of: (a) the objection to the Condemnor's right to take; (b) the objection that the deposit is inadequate; or (c) the demand for full just compensation, severance damages, and statutory interest. The deposit is to be offset against the final award (AS 09.55.440(a)–(b)).

6. RESERVATION OF JUST COMPENSATION, SEVERANCE DAMAGES, INTEREST, COSTS, AND FEES

If the Court determines the Condemnor has the right to take, Owner demands full just compensation, including:

6.1. Interest. Owner is entitled to interest at 10.5% per year on the amount finally awarded that exceeds the deposit, running from the date title vested to the date of payment (AS 09.55.440(a)).

6.2. Costs and fees. Owner reserves all costs and, to the extent allowed by law and Alaska R. Civ. P. 72 and 82, attorney's fees and expert/appraisal costs.

6.3. Owner reserves all relocation assistance benefits available under applicable state and federal law (42 U.S.C. § 4601 et seq.).

7. DEMAND FOR HEARING AND FOR JURY ON COMPENSATION

7.1. ☐ Owner demands a hearing on this Objection — on authority, public use, necessity, the sufficiency of the Declaration, and the adequacy of the deposit — before any right of entry is granted (AS 09.55.450(a)).

7.2. ☐ Owner demands a trial by jury on the amount of just compensation. Under AS 09.55.300–.320, compensation is determined by a master or jury; unless all parties consent to a master, the question of compensation is tried to a jury. Owner does not consent to a master and demands a jury.

8. PRAYER FOR RELIEF

WHEREFORE, Owner respectfully requests that the Court:

1. ☐ Sustain the Objection and set aside the Declaration of Taking for lack of authority/right to take, absence of public use, lack of necessity, excessive taking, and/or procedural defects;

2. ☐ Bar or defer the Condemnor's right of entry pending resolution of this Objection (AS 09.55.450(a));

3. ☐ In the alternative, limit the quantity or estate taken to what is necessary (AS 09.55.290);

4. ☐ Increase the deposit to reflect full just compensation, and authorize withdrawal of deposited funds without prejudice or waiver (AS 09.55.440(b));

5. ☐ Order an evidentiary hearing on authority, public use, necessity, and compensation, and empanel a jury to determine compensation;

6. ☐ Award full just compensation of not less than $[____________], with 10.5% interest on any excess over the deposit (AS 09.55.440(a)), plus costs and fees as allowed by law;

7. ☐ If the taking is found not to be by necessity for a public use in a manner compatible with the greatest public good and least private injury, order restoration and damages under AS 09.55.460(b); and

8. ☐ Grant such other and further relief as the Court deems just and proper.

9. VERIFICATION

STATE OF ALASKA

[________________________________] JUDICIAL DISTRICT

I, [OWNER NAME], am the Defendant/Owner (or authorized representative) in this action. I have read the foregoing Objection to Declaration of Taking, and the facts stated in it are true and correct to the best of my knowledge, information, and belief.

I certify under penalty of perjury under the laws of the State of Alaska that the foregoing is true and correct.

Executed on [__/__/____].

[________________________________]

[OWNER NAME]

10. SIGNATURE AND SERVICE BLOCKS

Date: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], Alaska Bar No. [________]

Attorney for Defendant(s) / Property Owner(s)

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

11. CERTIFICATE OF SERVICE

I certify that on [__/__/____] a true and correct copy of the foregoing OBJECTION TO DECLARATION OF TAKING was served on all counsel and parties of record by the method(s) indicated below:

☐ Alaska Courts electronic filing/service (TrueFiling)
☐ U.S. Mail, postage prepaid
☐ Hand delivery
☐ Email (by agreement / per rule)
☐ Other: [________________________________]

Condemnor's Counsel: [________________________________]

[________________________________]

[________________________________]

(Signature) [________________________________]

12. ALASKA PRACTICE NOTES

• True declaration of taking. Alaska is one of the states with a statutory "declaration of taking" (AS 09.55.420). The STATE may use it for any project; a MUNICIPALITY may use it only for enumerated purposes (street/highway, off-street parking, school, sewer, water, telephone, electric, other utility, slum clearance). It cannot be used against REA/telephone-cooperative or federally assisted nonprofit property, and off-street-parking takings require four weeks' published notice plus a public hearing.
• Title vests on filing + deposit. AS 09.55.440(a): title vests, and the right to compensation vests, on filing the declaration and depositing the estimate. Judgment carries 10.5% annual interest on any excess over the deposit, from the date title vests.
• Objection deadline and the possession bar. AS 09.55.450(a): the court may NOT grant the right of entry until the time to object has run or a timely objection has been heard. This makes a prompt objection the owner's main tool to hold off possession. Title 9 does not fix a single numeric deadline — confirm the operative deadline under Alaska R. Civ. P. 72, the summons/notice, and any court order. FLAG: verify the deadline; it is procedural.
• Right to take / divestiture standard. AS 09.55.270 (authorized use; necessity; more-necessary public use) and AS 09.55.290 (court may limit quantity taken). Under AS 09.55.460(b), the condemnor is divested only if the court finds the taking was not by necessity for a public use in a manner compatible with the greatest public good and least private injury — then restoration/diminution damages follow.
• Deposit withdrawal / waiver. AS 09.55.440(b): on motion and notice, the deposit may be paid out on account of compensation; it is offset against the final award (and excess is recovered from the owner). Withdrawal is on account of compensation and need not waive the demand for full compensation; but if the owner withdraws AND remains in possession, the court may charge rental (AS 09.55.450(a)). Where a right-to-take objection is pending, confirm sequencing before withdrawing. (Whether withdrawal forfeits a still-unraised right-to-take challenge is best treated as unsettled — preserve the objection first.)
• Compensation tried to master or jury. AS 09.55.300–.320: compensation is set by a master or, if any party objects to a master, by a jury. Withhold consent to a master and demand a jury if a jury is wanted.
• Anti-Kelo limit. AS 09.55.240 bars takings to transfer property to another private person for economic development and restricts certain recreational takings near a residence.

13. SOURCES AND REFERENCES

• Alaska Const. art. I, § 18 (just compensation)
• AS 09.55.240 (uses authorized; anti-economic-development limit) — https://law.justia.com/codes/alaska/title-9/chapter-55/article-4/
• AS 09.55.270 (authorized use; necessity; more necessary public use)
• AS 09.55.290 (court may limit quantity taken)
• AS 09.55.300–.320 (master/jury determination of compensation)
• AS 09.55.420 (declaration of taking by state or municipality) — https://codes.findlaw.com/ak/title-9-code-of-civil-procedure/ak-st-sect-09-55-420/
• AS 09.55.430 (contents of declaration of taking) — https://codes.findlaw.com/ak/title-9-code-of-civil-procedure/ak-st-sect-09-55-430/
• AS 09.55.440 (vesting of title and compensation; 10.5% interest; deposit withdrawal)
• AS 09.55.450 (right of entry and possession; entry barred until objection time runs/heard) — https://codes.findlaw.com/ak/title-9-code-of-civil-procedure/ak-st-sect-09-55-450/
• AS 09.55.460 (effect of appeal; divestiture on no-necessity/public-use finding)
• AS 09.63.020 (unsworn declaration under penalty of perjury)
• Alaska R. Civ. P. 72 (eminent domain); Rule 82 (attorney's fees)
• 42 U.S.C. § 4601 et seq. (Uniform Relocation Assistance Act)

Disclaimer: This template is for informational purposes only and is not legal advice. Alaska's declaration-of-taking procedure (AS 09.55.420–.460) vests title on filing and deposit, and the time to object — which also gates the condemnor's right of entry under AS 09.55.450(a) — is short and procedural. An attorney licensed in Alaska must review and customize this document, and verify all authorities and deadlines, before filing.