Objection to Declaration of Taking - Arkansas

OBJECTION TO DECLARATION OF TAKING — ARKANSAS

TABLE OF CONTENTS

1. Caption
2. Introduction
3. Grounds for Objection / Motion to Strike
4. Request to Strike or Stay the Declaration / Limit the Taking
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 12-Person Jury on Compensation
8. Prayer for Relief
9. Verification
10. Signature and Service Blocks
11. Certificate of Service
12. Arkansas Practice Notes
13. Sources and References

1. CAPTION

IN THE CIRCUIT COURT OF [________________________________] COUNTY, ARKANSAS

[________________________________] DIVISION

Case No. [________________________________]

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

OBJECTION TO DECLARATION OF TAKING (MOTION TO STRIKE DECLARATION OF TAKING AND DISMISS); MOTION TO INCREASE DEPOSIT AND TO WITHDRAW FUNDS WITHOUT WAIVER

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, in a highway case, move under Ark. Code Ann. § 27-67-313 to strike the Declaration and dismiss the suit. Owner states:

1. On [__/__/____], the Condemnor filed a Declaration of Taking under [Ark. Code Ann. § 27-67-312 / ________] and deposited $[____________] with the Clerk of this Court as its estimate of just compensation (Ark. Code Ann. § 27-67-314).

2. Owner files this Objection and Motion to Strike on or before the return day in the summons/notice or within twenty (20) days after the filing of the Declaration, whichever is later, as required by Ark. Code Ann. § 27-67-313(b). Owner challenges the validity of the taking, the public use and necessity, the sufficiency of the Declaration, and the adequacy of the deposit, and asks the Court to strike the Declaration, or in the alternative limit the taking and increase the deposit.

3. GROUNDS FOR OBJECTION / MOTION TO STRIKE

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, or has exceeded its delegated authority (Ark. Code Ann. § 18-15-103(b)(3)).
• ☐ The official filing the Declaration lacks authority to do so (in a highway case, the Declaration must be signed by the Director — Ark. Code Ann. § 27-67-312(a)).

3.2 Lack of Public Use or Purpose

• ☐ The taking does not serve a public use (Ark. Const. art. 2, § 22; Ark. Code Ann. § 18-15-103(b)(2)).
• ☐ The stated public purpose is pretextual; the actual beneficiary is a private party.

3.3 Lack of Necessity

• ☐ The taking of the Subject Property, or its extent/configuration, is not reasonably necessary for the project; the Condemnor acted arbitrarily, in bad faith, or in abuse of discretion.
• ☐ 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 (e.g., fee where an easement would suffice), than is reasonably necessary; the taking should be denied or narrowed.

3.5 Procedural and Notice Defects in the Declaration / Deposit

• ☐ The Declaration omits or defectively states one or more contents required by Ark. Code Ann. § 27-67-312(b) (authority; public use; description sufficient for identification; plat; estimated just compensation).
• ☐ The estimated compensation was not deposited with the circuit clerk, or the deposit does not match the estimate stated in the Declaration (Ark. Code Ann. § 27-67-314(a)).
• ☐ Defective or untimely process/service.
• ☐ 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 Ark. Const. art. 2, § 22 and Ark. Code Ann. § 18-15-103(b)(1).
• ☐ 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 Negotiation

• ☐ The Condemnor failed to provide an ASSESSMENT of just compensation before or contemporaneously with a written good-faith OFFER, and/or failed to make a written good-faith offer before filing, as required by Ark. Code Ann. § 18-15-103(b)(5)–(6).
• ☐ Other: [________________________________]

4. REQUEST TO STRIKE OR STAY THE DECLARATION / LIMIT THE TAKING

4.1. Owner requests that the Court strike the Declaration of Taking and dismiss the suit under Ark. Code Ann. § 27-67-313 for lack of authority/right to take, absence of public use, lack of necessity, excessive taking, and/or defects in the Declaration.

4.2. In the alternative, Owner requests that the Court limit the estate or quantity taken to what is reasonably necessary and fix protective terms of possession under Ark. Code Ann. § 27-67-314(a).

4.3. ☐ Owner requests that any right of entry be stayed pending a hearing on this Objection/Motion to Strike.

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 full just compensation, supported by appraisal, because the current deposit is inadequate under Ark. Const. art. 2, § 22 and Ark. Code Ann. § 18-15-103(b)(1).

5.2. Owner moves, pursuant to Ark. Code Ann. § 27-67-317(a), for an order directing that the deposited funds (or part) be paid to Owner immediately on account of the just compensation to be awarded. Owner makes this withdrawal request WITHOUT PREJUDICE and WITHOUT WAIVER of: (a) the objection/motion to strike challenging the right to take; (b) the objection that the deposit is inadequate; (c) the demand for a 12-person jury; or (d) the demand for full just compensation, severance damages, interest, costs, and fees. Withdrawal is on account of compensation and is credited against the final award.

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. In a highway case, judgment includes 6% annual interest on the amount finally awarded, from the date possession is surrendered to the date of payment, except on amounts paid into court (Ark. Code Ann. § 27-67-316(e)).

6.2. Fee-shift (20% rule). If the compensation finally awarded exceeds the deposit by twenty percent (20%) or more, the Court SHALL enter judgment against the State for the deficiency and award Owner costs, expenses, and reasonable attorney's fees, including appraisal and expert fees (Ark. Code Ann. § 27-67-317(b)). For non-highway condemnors, Owner reserves the parallel 20% fee-shift under Ark. Code Ann. § 18-15-103(b)(11) (measured against the written good-faith offer; counties and municipalities are excepted).

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 12-PERSON JURY ON COMPENSATION

7.1. ☐ Owner demands a hearing on this Objection/Motion to Strike — on authority, public use, necessity, sufficiency of the Declaration, and adequacy of the deposit.

7.2. ☐ Owner demands a trial by a jury of twelve (12) to determine just compensation. It is the Court's duty to impanel a 12-person jury (Ark. Code Ann. § 27-67-316(a); Ark. Code Ann. § 18-15-103(b)(9)).

8. PRAYER FOR RELIEF

WHEREFORE, Owner respectfully requests that the Court:

1. ☐ Strike the Declaration of Taking and dismiss the suit under Ark. Code Ann. § 27-67-313 for lack of authority/right to take, absence of public use, lack of necessity, excessive taking, and/or defects in the Declaration;

2. ☐ In the alternative, limit the estate/quantity taken to what is reasonably necessary and set protective terms of possession (Ark. Code Ann. § 27-67-314(a));

3. ☐ Increase the deposit to reflect full just compensation, and authorize withdrawal of deposited funds without prejudice or waiver (Ark. Code Ann. § 27-67-317(a));

4. ☐ Order an evidentiary hearing on authority, public use, necessity, and compensation, and empanel a jury of twelve (12) to determine compensation;

5. ☐ Award full just compensation of not less than $[____________], with 6% interest from surrender of possession (Ark. Code Ann. § 27-67-316(e));

6. ☐ Award Owner costs, expenses, and reasonable attorney's, appraisal, and expert fees under Ark. Code Ann. § 27-67-317(b) (or § 18-15-103(b)(11)) if the award exceeds the deposit/offer by 20% or more; and

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

9. VERIFICATION

STATE OF ARKANSAS

COUNTY OF [________________________________]

I, [OWNER NAME], being first duly sworn, state that I am the Defendant/Owner (or authorized representative) in the above-captioned matter, that I have read the foregoing Objection to Declaration of Taking, and that the facts stated in it are true and correct to the best of my knowledge, information, and belief.

[________________________________]

[OWNER NAME]

Subscribed and sworn to before me this [____] day of [________________], 20[____].

[________________________________]

Notary Public

My Commission Expires: [__/__/____]

10. SIGNATURE AND SERVICE BLOCKS

Date: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], Ark. 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:

☐ Arkansas Judiciary electronic filing/service (eFlex)
☐ U.S. Mail, postage prepaid
☐ Certified mail, return receipt requested
☐ Hand delivery
☐ Email (by agreement / per rule)
☐ Other: [________________________________]

Condemnor's Counsel: [________________________________]

[________________________________]

[________________________________]

(Signature) [________________________________]

12. ARKANSAS PRACTICE NOTES

• Quick-take / declaration of taking. Arkansas uses a deposit-and-entry quick-take. The clearest statutory "declaration of taking" is the HIGHWAY scheme: ARDOT, by the Director, may file a declaration with the petition or any time before judgment (Ark. Code Ann. § 27-67-312). Other condemnors often proceed by deposit-and-entry under the railroad right-of-way procedure (§§ 18-15-1202 to -1207) adopted by reference, or under their own enabling acts. Confirm the invoked statute and conform this filing.
• Objection vehicle and deadline (highway/ARDOT). A challenge to the VALIDITY of the taking must be made by a motion to strike the declaration and dismiss, filed on or before the return day in the summons/notice OR within 20 days after the declaration is filed, whichever is later (Ark. Code Ann. § 27-67-313(a)–(b)). Failure to file in time WAIVES the right to challenge the taking (§ 27-67-313(c)). Calendar this immediately. If the condemnor is not ARDOT, use the validity-challenge vehicle its enabling statute or the Rules of Civil Procedure provide.
• Possession on deposit. On filing the declaration and depositing the estimated compensation with the circuit clerk, the State has the right of entry and the owner surrenders possession on terms the court fixes (§ 27-67-314(a)); title vests (§ 27-67-315).
• Deposit withdrawal / no waiver of jury. On application and notice, the deposit (or part) may be paid out immediately (§ 27-67-317(a)). The owner may withdraw and still demand a 12-person jury and full compensation (§ 27-67-316(a)). Cautions: a final award less than the deposit yields judgment against the owner for the excess (§ 27-67-317(c)); and withdrawal-plus-continued-possession may trigger rental (§ 27-67-314(b)).
• 12-person jury; 6% interest. Compensation is set by a 12-person jury (§ 27-67-316(a); § 18-15-103(b)(9)); highway judgments bear 6% interest from surrender of possession, except on sums paid into court (§ 27-67-316(e)).
• Fee-shift (20% rule). Award exceeding the deposit by 20%+ triggers a mandatory fee/cost award against the State in highway cases (§ 27-67-317(b)); a parallel 20% fee-shift against the written good-faith offer applies to most other condemnors, except counties and municipalities (§ 18-15-103(b)(11)).
• Pre-suit offer/assessment. The condemnor must provide an assessment with/before a written good-faith offer, made before filing (§ 18-15-103(b)(5)–(6)). Test compliance.

13. SOURCES AND REFERENCES

• Ark. Const. art. 2, § 22; art. 12, § 9 (just compensation; deposit/security)
• Ark. Code Ann. § 18-15-103 (eminent domain property owner bill of rights; 12-person jury; 20% fee-shift) — https://codes.findlaw.com/ar/title-18-property/ar-code-sect-18-15-103/
• Ark. Code Ann. §§ 18-15-1202 to -1207 (railroad right-of-way condemnation procedure, adopted by reference)
• Ark. Code Ann. § 27-67-312 (filing declaration of taking; contents) — https://codes.findlaw.com/ar/title-27-transportation/ar-code-sect-27-67-312/
• Ark. Code Ann. § 27-67-313 (motion to strike declaration; deadline; waiver) — https://codes.findlaw.com/ar/title-27-transportation/ar-code-sect-27-67-313/
• Ark. Code Ann. § 27-67-314 (State's right of entry; deposit; terms of possession) — https://codes.findlaw.com/ar/title-27-transportation/ar-code-sect-27-67-314
• Ark. Code Ann. § 27-67-315 (vesting of title)
• Ark. Code Ann. § 27-67-316 (12-person jury; 6% interest) — https://codes.findlaw.com/ar/title-27-transportation/ar-code-sect-27-67-316/
• Ark. Code Ann. § 27-67-317 (withdrawal of deposit; 20% fee-shift) — https://codes.findlaw.com/ar/title-27-transportation/ar-code-sect-27-67-317/
• 42 U.S.C. § 4601 et seq. (Uniform Relocation Assistance Act)

Disclaimer: This template is for informational purposes only and is not legal advice. In Arkansas highway cases, a challenge to the validity of a declaration of taking must be raised by a motion to strike under Ark. Code Ann. § 27-67-313 within a short deadline (return day or 20 days after filing, whichever is later), and failure to do so WAIVES the right to contest the taking. For non-ARDOT condemnors, the controlling vehicle and deadline differ. An attorney licensed in Arkansas must review and customize this document, and verify all authorities and deadlines, before filing.