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 as an answer under Civil Rule 72(e)(1) within 20 days after service of summons. 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 consider a supplemental deposit.

Owner also files a notice of appearance under Civil Rule 72(e)(2), disputes the proposed compensation, and requests notice of all further proceedings at the service address in Section 10.

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 outside AS 09.55.420(a)'s listed purposes or another use granted to cities of the first class.
• ☐ 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(d), and none of its exceptions applies.

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 09.55.300(a)(2).
• ☐ 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

• ☐ An applicable acquisition requirement calls for a prefiling offer or negotiation, and the Condemnor failed to satisfy it. Identify the requirement and facts: [________________________________].
• ☐ 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 09.55.300(a)(2)).

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 requests an order requiring a supplemental deposit or other appropriate relief based on the valuation evidence attached as Exhibit B. AS 09.55.430(6) requires the Declaration to state the Condemnor's estimate of just compensation; Owner disputes that estimate and asks the Court to consider the attached evidence.

5.2. ☐ If the Court determines withdrawal is compatible with the pending right-to-take objection, Owner moves under AS 09.55.440(b) for an order distributing all or part of the deposit on account of compensation. Owner requests that the order address preservation of the stated objections. The deposit is offset against the final award; if the final award is less than the deposit, the statute calls for judgment recovering the excess from the proper parties.

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)).

The valuation may use evidence about loss of access, improvements, fixtures, and cost to cure, but those amounts must not be added twice if already reflected in value or severance damages.

6.2. Costs and fees. Owner reserves a request for costs and attorney's fees to the extent allowed by Alaska R. Civ. P. 72(k).

6.3. Owner separately reserves any relocation assistance benefits available for this acquisition.

7. DEMAND FOR HEARING AND FOR JURY ON COMPENSATION

7.1. ☐ Owner demands a hearing on the timely right-to-take and declaration objections before any right of entry is granted (AS 09.55.450(a)), and separately requests consideration of the deposit evidence.

7.2. ☐ Owner objects to appointment of a master and requests a jury trial on compensation. Under AS 09.55.300(b), if all parties object to a master, the court proceeds to a jury trial unless all waive the jury. If a master is appointed, Owner reserves the right to appeal the award and make a timely jury demand under AS 09.55.320 and Civil Rule 72(h)(6).

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 09.55.300(a)(2));

4. ☐ Consider a supplemental deposit based on the valuation evidence and, if compatible with the pending objection, authorize distribution of deposited funds under AS 09.55.440(b) on terms preserving the objections;

5. ☐ Order a hearing on authority, public use, necessity, and the declaration; determine compensation through the master or jury procedure and, if a jury is timely demanded, empanel a jury;

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.

If a notary public or other official empowered to administer oaths is unavailable, I certify under penalty of perjury that the foregoing is true. See AS 09.63.020(a).

Executed on [__/__/____] at [CITY], Alaska.

[________________________________]

[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

• Declaration of taking. The state may file a declaration in a proceeding under AS 09.55.240–.460. A municipality may use it for the purposes enumerated in AS 09.55.420(a) (street/highway, off-street parking, school, sewer, water, telephone, electric, other utility, slum clearance) or another use granted to cities of the first class. The procedure cannot be used for the cooperative and federally assisted nonprofit property specified there; off-street-parking takings require publication once a week for four consecutive weeks followed by 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. Civil Rule 72(e)(1) requires the answer stating all right-to-take and declaration objections within 20 days after service of summons; failure to answer waives those objections. A defendant served with an amended complaint may respond within Rule 72(e)'s period under Rule 72(f). Check the service history if the declaration was filed later. Rule 72(e)(2) separately requires a notice of appearance for a defendant disputing compensation or seeking notice. AS 09.55.450(a) bars an order granting entry until the objection period runs or a timely objection is heard. An objection alone does not undo title vesting under AS 09.55.440(a).
• Right to take / divestiture standard. AS 09.55.270 (authorized use; necessity; more-necessary public use) and AS 09.55.300(a)(2) (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. AS 09.55.440(b) permits distribution on motion and notice and specifies offset or recovery after the final award. It does not expressly decide waiver of a right-to-take objection. Seek an order addressing that issue before withdrawing while an objection is pending. If the owner withdraws funds and remains in possession, the court may charge reasonable rent under AS 09.55.450(a).
• Compensation tried to master or jury. AS 09.55.300(b) directs a jury trial if all parties object to a master, unless all waive the jury. A master's award may be appealed under AS 09.55.320; Civil Rule 72(h)(6) sets the jury-demand period.
• Private-transfer limit. AS 09.55.240(d) restricts economic-development transfers to another private person, subject to its enumerated exceptions; subsection (e) restricts certain recreational-project takings near a residence.

13. SOURCES AND REFERENCES

• Alaska Const. art. I, § 18 (just compensation)
• AS 09.55.240 (uses and private-transfer restrictions) — https://www.akleg.gov/basis/statutes.asp?media=print&secStart=09.55.240&secEnd=09.55.330
• AS 09.55.270 (authorized use; necessity; more necessary public use)
• AS 09.55.300(a)(2) (court may limit quantity taken) — https://www.akleg.gov/basis/statutes.asp?media=print&secStart=09.55.240&secEnd=09.55.330
• AS 09.55.300–.320 (master/jury determination of compensation)
• AS 09.55.420 (declaration of taking by state or municipality) — https://www.akleg.gov/basis/statutes.asp?media=print&secStart=09.55.420&secEnd=09.55.460
• AS 09.55.430 (contents of declaration of taking)
• 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)
• AS 09.55.460 (effect of appeal; divestiture on no-necessity/public-use finding)
• AS 09.63.020 (unsworn declaration under penalty of perjury) — https://www.akleg.gov/basis/statutes.asp?media=print&secStart=09.63.020&secEnd=09.63.020
• Alaska R. Civ. P. 72 (eminent domain and costs) — https://courts.alaska.gov/rules/docs/civ.pdf

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.