When it comes to hard decisions, building a new fire station ranks among the toughest. The costs and consequences are enormous: millions of dollars, community safety and the department's reputation all are part of the equation.

Typically, a lot of time and money are spent on design, but land acquisition deserves equally thorough planning — especially if you're in a seller's market or a densely developed area. Unfortunately, the process of identifying and purchasing property often doesn't receive the early attention it needs to avoid protracted legal negotiations and sky-high real estate prices. Focusing on land acquisition early gives you a better chance of securing the best location for the best price.

But before you can build a station, you need to build a land acquisition team. Along with fire service leaders, the team should include an architect, land acquisition or real estate agent, community planner, geotechnical and environmental engineers, and legal counsel.

“The fire service has a bad habit of trying to do everything,” says Chief Paul Witt of King County Fire District 40, Renton, Wash. “But we really can't be experts on everything. You absolutely need a team.” After a four-year land acquisition process, Witt's department broke ground in July 2006 for a $9 million facility; the department expects to move in this summer.

“It doesn't matter how many projects you've been involved in before,” Witt says. “Each time you build a station you're faced with a very unique, dynamic set of challenges. You need outside expertise to help lay out the process and advance the cause.”

The acquisition team should be able to help answer critical questions about the community's present and future fire-protection and life-safety requirements, as these will be primary factors in selecting an appropriate location. How is the community changing? Is the population becoming older or younger? Are open spaces being filled with business parks and other development? What about future road construction, or other projects affecting access? Is the real estate market overheated or cooling down? Are there special permits, variances and other legal requirements you need to consider before starting your property search? By using your department's best talent, you'll be able to determine call volumes, response times, equipment needs and other factors relevant to the delivery of fire protection and emergency medical services.

Design considerations

Once your team has identified community and departmental needs, you can begin to consider design. But remember, form must follow function.

Ideally, the entire team will review potential properties. If that's not practical, then your architect, planner, and land-acquisition or real estate agent should work together to develop options. Attention should be given to special conditions on land use such as wetlands mitigation, hazardous waste cleanup and utility rights-of-way. It's also a good idea for your legal counsel to be involved in this process. An attorney can help identify potential legal problems, negotiate the purchase, explain the benefits of selling to a government entity and protect your interests during feasibility studies.

Communication among team members is essential. The decisions you make today will affect the department for decades to come. “Twenty years from now, I don't want my successor asking ‘What in hell was this Weathers guy thinking?’” says Chief Tom Weathers of King County Fire District 16, Kenmore, Wash. His department is preparing to build a new administrative and operational headquarters facility in a small but fast-changing city.

“A fire station is a like a hospital or a school — there's an expectation that it will stand for generations,” Weathers adds. He suggests talking with community leaders about their vision of the future to “find out if they're planning to encourage new industry, denser residential development, or even special housing such as assisted living facilities — anything that could affect service requirements.”

As part of the strategy for long-term success, the team should consider whether a combined-use facility makes sense before looking at property. In a growing number of communities, the fire service is sharing space with law enforcement or other public agencies to make the most of limited public dollars, improve access to community services, even to revitalize neighborhoods.

“For one recent project we actually searched for under-utilized properties in a targeted response area, with the idea of building a satellite station that would be an anchor point for a deteriorating community,” says Brian Harris, principal architect with TCA Architecture and Planning, a Seattle-based firm specializing in fire service facilities and other public buildings. By considering the community's overall needs, the fire department was able to locate and build a facility that is helping stabilize a neighborhood.

“The new satellite station is really a point of pride for residents,” Harris says. “It's led to improvements in area infrastructure, contributed to a more positive local identity, and even generated some peace of mind by serving as a kind of neighborhood watchdog.”

Eminent domain

If you're lucky, the right property will be available at the right price. But often, it's not possible for a department to acquire land through voluntary sales. In the interest of the community, fire service leadership must be willing to consider the use of eminent domain.

Eminent domain, the government's ability to take property from private individuals to serve the public good, is a centuries-old legal principle. This authority to condemn private property is extended to federal, state and local governments and is enshrined in the U.S. Constitution.

Nevertheless, eminent domain is a hot-button issue in many communities. In response to a 2005 U.S. Supreme Court ruling, many states and some local jurisdictions are imposing new restrictions on the use of eminent domain. (See “Condemn Nation,” right.) As part of any land acquisition project, fire service leadership should talk with legal counsel about eminent domain, its uses and consequences.

By law, governments exercising eminent domain must offer “just compensation” for property. But what is “just compensation?” In most states, it's defined by fair market value, the price a willing but not obligated buyer would pay to a willing but not obligated seller. Guided by this definition, real estate appraisers generally apply one of three widely accepted valuation methods. Your appraiser, attorney and real estate agent will be able to explain the pros and cons of each approach and help decide which formula should be used in your jurisdiction.

When exercising eminent domain powers, your project doubtlessly will need to go through a special approval process before you can complete the land purchase. Most jurisdictions require the department's own governing body to issue an official determination that the purchase of the property will serve a public purpose. Then a court or administrative board generally will need to review the proposed land acquisition. Once public use and necessity are determined, the district may deposit funds into the registry of the court for purchase of the property.

If property owners dispute the department's offer and agreement can't be negotiated, it then will be up to the court or an administrative body to rule on the value of the property. If the court decides on an amount greater than the price originally offered by the department and deposited with the court, then the department must pay the difference to the property owner.

Purchase incentives

When negotiating with private property owners, you'll want to be sure they understand the benefits of selling to the fire service; these may include significant financial advantages.

Most states provide certain tax breaks, such as an excise tax exemption, when property is sold to a government entity. This can mean substantial savings for a property owner on the cost of the sale, again depending on the jurisdiction.

The seller also may be relieved from paying any sales commissions. When hiring a land acquisition or real estate agent, the department should consider paying the commission. Even reluctant sellers respond favorably to this kind of offer.

Another benefit that you should make sellers aware of is that when property owners are forced to sell to the government, they are eligible for special benefits under Section 1033 of the U.S. Internal Revenue Code. Under this provision, sellers are allowed more time to reinvest proceeds from the sale of their property before becoming liable for capital gains tax. Additionally, property owners don't have to place sale proceeds in trust during this time, as they normally would, to avoid a tax hit.

You also can make selling more attractive by giving property owners extra time to relocate. Consider allowing the sellers to remain on the premises through the planning or permitting phases.

Perhaps more than any other government entity, the fire service enjoys strong community support. Reminding potential sellers that they will be contributing to their neighbors' health and safety often is all that's needed to close a deal.

Instituting your plan

Sooner or later, every fire chief likely will face the challenge of land acquisition. Whether that process builds political capital or becomes a public relations disaster will depend largely on how well you prepare.

Be visionary

As communities grow and residential and commercial development becomes denser, it will be harder to find property. Look ahead 20, 30, 40 or even 50 years when planning your project and try to anticipate community needs.

Build consensus

Community support is critical. Be sure you can explain why the project will benefit the community, now and in the future.

Listen up

Property owners want to feel they've been taken seriously and paid fairly. Don't be afraid to simply ask what prospective sellers would like in exchange for their property. Quite often, it's not just about the money. A seller may want more time to relocate, retain salvage rights to buildings or plantings, or obtain community recognition. Listening to property owners will make the process faster and smoother, and it may save you thousands of dollars in litigation costs.

Work fast

Government can be necessarily slow, but work as quickly as possible to avoid costly distractions and disappointment. Keep your project moving by first assembling a strong team. Agree on common goals and a project timeline. Develop a strategic plan that includes allowances for delays in negotiations, changes in the law, rising land values and other contingencies.

Keep it simple

It's important to anticipate problems, but don't overly complicate your plan. When making an offer on properties, schedule a short feasibility period and a quick close. (Most developers like extended feasibility studies, but remember you're not a developer.) If the team has done its homework, you should have a pretty good handle on any problems you might be buying along with the land. If you don't, you probably aren't ready to make an offer on any properties.

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Kinnon W. Williams is the managing partner of Williams & Williams PSC in Bothell, Wash. He represents numerous fire protection districts, municipalities and public boards, with a focus on real estate acquisition and public works projects. He is a frequent speaker on eminent domain.

Condemn Nation

An incontrovertible part of the American dream, private ownership of property is one of our most valued — and vigorously defended — fundamental rights. But even the framers of our democracy recognized there would be times when the public good required limiting individual freedoms.

The Fifth Amendment of the U.S. Constitution allows the federal government to take private property, including homes and land, to satisfy a public need. The 14th Amendment extends that same right to individual states, which may delegate similar authority to condemn property to municipalities, special purpose districts and public service corporations. The only requirement is that owners be given “just compensation” and the property be dedicated to a “public use.” This power to condemn private property is known as the right of eminent domain.

Historically, eminent domain has been used largely for public projects with an obvious and immediate community purpose such as the taking of land for road construction or the building of a new school or fire station. Society has been largely tolerant of eminent domain, but the citizenry's forbearance is wearing thin.

Testing the patience of many — and inciting near-rebellion among some — is the U.S. Supreme Court decision in Kelo v. City of New London. In that case, the high court ruled the City of New London, Conn., could exercise eminent domain to further economic revitalization. Specifically, the city could legally force individuals from their homes and raze their property to make way for a commercial waterfront project.

The first review of eminent domain in more than 50 years, the high court's 5-4 decision only confirmed what lower courts had been saying for decades: Governments may use eminent domain to combat urban blight, increase tax revenues and create employment opportunities.

But the 2005 ruling provoked national outrage. In response, initiatives to check the use of eminent domain have so far passed in 35 states, and restrictions are being considered by still more legislatures. At the local level, more than 70 cities and counties nationwide are considering statutory or regulatory action to protect homeowners from takings.

By and large, the new laws are intended to limit local governments' ability to appropriate private property for commercial development. But some property-rights advocates would go further, forcing governments to compensate anyone whose property loses value as a result of rezoning, changes in environmental regulations, new consumer protection laws, or other actions affecting the value of a home or business. The most ardent reformers say governments should even be compensating property owners who wind up next door to a public neighbor who brings heavy traffic or loud noise — such as a police or fire station.

By and large, the populace remains understanding of governments' occasional need to exercise eminent domain to advance projects clearly necessary to protect public health and welfare. But that support cannot — must not — be taken for granted.