In the last several articles, we’ve discussed the history and power of eminent domain and the types of eminent domain takings.  To end this series, we’d like to address the several points of attack to challenging a condemnation decision.  Once a condemnation petition is filed, a property owner may challenge:

1. Authority to Condemn
2. Public Use
3. Just Compensation

Authority to Condemn

In an eminent domain proceeding, a property owner may challenge a condemnor’s authority to condemn.  In some states a property owner must challenge the legality of the condemnation separate from the issue of just compensation.

In Iowa, a condemnee may challenge the initiating action of the condemnor by injunction, mandamus, and certiorari (Id. At 865).  In Wisconsin, if an owner wishes to contest any aspect of condemnation besides compensation, he must file an action in the circuit court within 40 days of receiving the jurisdictional (final) offer (Wis. Stat. § 32.05(5)).  In other states, a challenge to the authority to condemn does not require an action outside of the eminent domain proceeding.  For example, in Illinois, the lawfulness of the taking is determined as part of the condemnation process (735 Ill. Comp. Stat. § 30/20-5-10).

As stated in a previous article, the only entity that intrinsically holds the power of eminent domain is the state.  Other potential condemnors must have the power delegated to them by legislative act (See supra, note 24).

Public Use

The federal and state constitutions limit the exercise of eminent domain to the taking of property for a public use. A property owner has the right to appeal a condemnation decision by challenging the public use.

“….Nor shall private property be taken for public use, without just compensation”, The Fifth Amendment to the U.S. Constitution.  “[O]ne person’s property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid” (Haw. Hous. Auth. V Midkiff, 467 U.S. 229, 241 (1984)).

Although the term ‘public use’ does not have a precise definition, we describe public use as the justification which the government must establish in its powers of eminent domain to acquire private property. Examples of endeavors which satisfy the public purpose include roads, parks, schools, other public buildings, removal of a public nuisance, elimination of blight, or any other endeavor where the purpose of the project serves a public good or need.  Whether the use for which private property is to be taken is a public one is a judicial question to be determined by the courts.  However, the courts seem to have avoided defining it lest the definition formulated prove an embarrassment in subsequent cases (6A Fletcher, supra, § 2914)

The removal of blight as a public use is fairly uncontroversial.  Blight removal as an exercise of eminent domain was approved by the Supreme Court over 50 years ago.  Nevertheless, the expansive “public use” definition struck by the Court in Kelo v City of New London caused a firestorm of state legislative action.  The U.S. House of Representatives immediately passed a resolution denouncing Kelo by a lopsided 365-33 vote, and forty-four states enacted post-Kelo reform legislation to curb eminent domain abuse. For those readers not familiar with the case, Kelo involved the removal of residential homes and investment properties through eminent domain that, although not blighted, were located within a blighted redevelopment area.

One scholar has evaluated these post-Kelo reform laws and classified them as either “effective” or “ineffective”.  Reform laws are classified as “ineffective” if they forbid economic development condemnations but essentially allow them to continue under another name, as in the case of states with broad definitions of “blight” that allow virtually any property to be declared blighted and condemned (93 Minn. L. Rev. at 2114).  A sample of Midwestern states shows the following breakdown:

Minnesota: Effective

South Dakota: Effective

Illinois: Ineffective

Iowa: Ineffective

Missouri: Ineffective

Nebraska: Ineffective

Wisconsin: Ineffective

The 6 states that have failed to pass post-Kelo reform measures are:  New York, New Jersey, Arkansas, Hawaii, Massachusetts, and Oklahoma.

Just Compensation

Unlike public use or authority, a property owner generally does not have to raise the issue of just compensation in a separate proceeding or specific procedural moment (i.e. hearing on legality of taking) in order to challenge its sufficiency.  If a property owner receives an unfair offer, then they should appeal the award.

In Iowa, a property owner or condemnor may appeal a commissioners’ award and challenge the amount of compensation within 30 days of the mailing of the award (Iowa Code § 6B.18(1)).  In New York, a property owner has three years after service of notice of acquisition or vesting, (whichever is later) to file a claim for additional damages with the clerk of court having jurisdiction over the matter. (NY EM DOM PROC § 503).  This is provided they did not sign the offer for final payment.

The right to a jury trial varies from state to state.  Most offer a jury trial at some point along the way.  Some states, like Nebraska, do not.  Rather than being a guarantee, a jury may have to be specifically requested in some states, such as Illinois.

Over the last several articles, we’ve discussed the history and powers of eminent domain, the types of eminent domain takings and the way in which a condemnation decision can be appealed.  One of the most important things to take away from this series of articles is that property owners have rights in the eminent domain process if they choose to assert them.   The eminent domain process is dictated by each state’s statutes, lending variations in the process by state.  It’s important to know your rights and to understand the eminent domain process in your state before taking action in an eminent domain case.

In our last article, we discussed the definition of eminent domain, the right of eminent domain and its history.  Armed with the knowledge contained therein, we’ll continue our discussion by reviewing the types of eminent domain “takings”.

In addition to real property, all property rights and interests are subject to the power of eminent domain.  This includes:

• Fee taking
• Taking or modification of existing easements
• Creation of new easements
• Riparian Rights (apart from appurtenant lands)

The only limitation upon the power to condemn rights over real property that has been seriously advanced is that a right to be taken by eminent domain must be capable of valuation in money.  (1A Sackman, supra, § 2.1).  In many circumstances, an eminent domain ‘taking’ necessitates more than just payment to the property owner for the land acquired.  For example, a private utility company may invoke its power of eminent domain to acquire an easement to bury a gas pipeline or to construct high voltage power lines across a property.  The acquisition may ultimately restrict or inhibit development on the remaining parcel, thus preventing the property owner from utilizing their property to its highest and best use.  In this situation, a property owner must be compensated for the loss of development potential in addition to compensation for the easement.

Similarly, the loss of air rights is considered a property right that constitutes a taking and requires the payment of just compensation in eminent domain law. The issue of air rights generally arises in one of two different configurations. The first and most common configuration involves the acquisition of air rights from a real estate owner by an aviation authority.  Learn more about air rights in eminent domain.

Last but not least, you can probably imagine and very well appreciate that having access to a property contributes to the overall value of the property.  In fact, if you don’t have access, it will be difficult to generate any value at all for the property.  If a condemning authority removes access to your property or if access is minimized to a level that changes the highest and best use for your property, than this constitutes a taking and the payment of just compensation under eminent domain law is required.

Beyond the traditional exercise of eminent domain, there are other types of “takings” including:

• Inverse Condemnation
• Regulatory Takings

Learn more about inverse condemnation and regulatory takings.

Participating in the Condemnation Process

Once the condemning authority establishes the taking, the state or delegated condemning authority typically initiates the eminent domain process by petitioning for condemnation.  For example, Illinois (735 Ill. Comp. Stat. § 30/10-5-10), Iowa (Iowa Code § 6B.3), Minnesota (Minn. Stat. § 117.055), Missouri (Mo. Ann. Stat. § 523.010-523.030) and South Dakota (S.D. Codified Laws § 21-35-1) eminent domain statutes direct the condemning authority to initiate the condemnation process by filing a petition.

In contrast, Wisconsin law directs the condemning authority to make a “jurisdictional offer” to the property owner, who must then file a claim in circuit court to assert their rights in the eminent domain process; including their right to additional just compensation. (Wis. Stat. § 32.05(9)(a), 32.05(2a).  Additionally, Massachusetts eminent domain law directs the property owner to petition the court for damages if they are not satisfied with the condemnor’s offer (Mass. Gen. Laws. Ann 79 § 14).

Although insofar as the courts are concerned, an eminent domain proceeding does not “begin” until a petition is filed, a condemnor will often contact the property owner prior to filing a petition to attempt to acquire the property amicably.  In some states, statutes require the condemnor to attempt to acquire via negotiations before a petition is brought (Iowa, Iowa Code § 6B.2B; Nebraska, Neb.Rev.St. § 76-702, 76-704.01).

Once a petition has been filed, many states appoint condemnation “commissioners” to determine just compensation for the taking.  For example:

Iowa: The County board will appoint 28 possible commissioners and the judge selects 6 commissioners to determine compensation (Iowa Code § 6B.3, 6B.4).

Minnesota: the Court will appoint 3 commissioners (Minn. Stat. § 117.075).

Nebraska: The Court will appoint 3 “appraisers”, although only one must be a credentialed real estate appraiser (Neb. Rev. St. § 76-706).

Wisconsin: the Court appoints 6, 9, or 12 commissioners depending on the size of county where condemnation is occurring (Wis. Stat. § 32.05, 32.08).

A property owner may settle for the commissioner’s award, or they may appeal the amount of just compensation.

In addition to appealing the amount of just compensation, a property owner may also challenge the authority to condemn and the public use.  In a subsequent article, we’ll discuss a property owners right to appeal a condemnation decision for additional just compensation, authority to condemn and the public use.

When I think about eminent domain, the haunting image of a large hand sweeping down from the sky and scooping up my house comes to mind.  Resonating inside my head are cases such as Kelo vs. the City of New London, Goldstein et al. v. N.Y.  State Urban Development Corporation; my Fifth Amendment rights, ‘land grab’, and even the poignant face of Big Brother looming from giant telescreens in Michael Radford’s 1984 film adaptation of George Orwell’s Nineteen-Eighty-four.

Despite eminent domain’s negative connotations, laws and statutes exist to protect property owners like us if we choose to assert them.  Over the next several articles, we’ll discuss the power of eminent domain and its history; discuss the eminent domain process and dissect the property owner’s rights in the condemnation process.

To fully understand eminent domain and its powers, we should first look at the definition of eminent domain and understand the power of eminent domain.  One definition is the power of the sovereign to take property for “public use” without the owner’s consent. (Julius Sackmna, et al., Nichols on Eminent Domain § 1.11 (3d ed. 2005).  Our definition of eminent domain is simply the legal process that has been established to allow governments to gain ownership of private property.  Although just compensation is an essential element of the valid exercise of eminent domain power, it is not an essential element of the meaning of eminent domain.

Contrary to public opinion, eminent domain powers did not come from the federal and state constitutions but rather rests in the sovereign state.  This principle that the power of eminent domain is an attribute of sovereignty has developed from two schools of thought:  (1) Natural law theory, and; (2) the concept of sovereignty.  Most states have adopted the latter.  For example, Illinois case law states that “the right of eminent domain is an essential attribute of sovereignty, inherent in every independent government, and to be exercised in the discretion of the sovereign power, to promote the general welfare of the people” (Penn Mut. Life Ins. Co. v Heiss, 141 Ill. 35, 31, N.E. 138 (1892).  Missouri case law supports this claim, “The right of eminent domain is inherent in every government.  In this state it is not conferred, but is limited by the constitution. (Kansas City v. Marsh oil Co., 140 Mo. 458, 41 S.W. 943 (1897).

The federal and state constitutions merely limit the power of eminent domain.  Part of these limitations is the payment of just compensation for the appropriated property.  The fifth amendment of the US Constitution states “[N]or shall private property be taken for a public use, without just compensation”.  The Wisconsin Constitution article I § 13 states “The property of no person shall be taken for public use without just compensation therefore”.

Although the government is required to pay you just compensation for your property, determining this amount is often a source of dispute because it involves a wide range of issues which the government may neglect to consider, such as the highest and best use for a property or damages to a remainder parcel.  Frequently, a property owner will only receive just compensation by allowing condemnation to occur.  We’ll investigate this process in more detail in a future article.

While exploring the history of eminent domain, we found that the power to take private property for public use has been exercised since the days of the Romans (See 1 Sackman, supra, § 1.12)   Although not so called, the power of eminent domain, along with the requirement of just compensation, was well established in England by the time of the American Revolution.  When the American colonies became a sovereign state “[t]hey retained for the purposes of government all the powers of the British Parliament…” (Munn v. Illinois, 94  U.S. 113 (1876).

The manifestation of eminent domain power limited by just compensation was enshrined in the U.S. Constitution in 1789.  While the states were fee to appropriate property using their own court systems, the power of the federal government to use its own courts to take property located in the states was not recognized until 1875 (Kohl v. United States, 91 U.S. 367 (1875).

The history and power of eminent domain is well established and consequently generates minimal controversy when compared to other more volatile elements of the eminent domain process, such as just compensation and public use.  In subsequent articles, we’ll evaluate the types of eminent domain “takings”, participating in the eminent domain process and appealing a condemnation decision.

Read Eminent Domain Process, Powers and History Part 2

Dan Biersdorf presented oral arguments before the Wisconsin Supreme Court on November 1^st, 2011 regarding the determination of contamination value in 260 N 12^th Street, LLC and Basil Ryan Jr., vs. Dep’t of Transp., No.  2009AP001557 (Wis. filed 2010)

Our firm initially became involved with this case in March 2008 after the attorney that Ryan initially hired withdrew from the case.  Given the complexity of his issues, he was advised to hire an attorney with extensive eminent domain experience and was referred to our firm shortly thereafter.  Given our past experience handling valuation contamination cases, (Dealers Manufacturing Co. vs. County of Anoka, No. C9-99-1869 (Minn., 2000) and several favorable interim rulings in two New York cases) we agreed to represent Ryan.

Upon initial review of the case documents, we discovered a significant valuation issue associated with the subject property caused by a claim of environmental contamination.  This claim had an impact upon the damage assessment made by the DOT in excess of $600,000.  The admission of contamination and remediation evidence in Chapter 32 condemnation cases is one of the key issues in this particular case, and the following points are therefore worth noting:

1. Should contamination and remediation evidence be admitted in Chapter 32 condemnation cases where: just compensation remedies must be liberally construed in favor of the property owner; there exists separate statutory frameworks (both federal and state) to address contamination and remediation costs; and there are due process concerns and the danger of a double taking where the State reduces the amount of just compensation by contamination remediation estimates while it still can assess penalties for remediation under other regulations?
2. Should speculative evidence of the impaired value of the property be admitted into evidence in a condemnation case where Respondent relied on estimates that had no basis of fact?

The attached brief details our stance on the issues above and others.  With the intention of keeping this article brief (no pun intended), I’ll merely address a few arguments.

Regarding #1 above, if contamination/remediation evidence is allowed (especially in this case where no rebuttal contamination/remediation evidence was allowed), then the property owner is assessed with all the costs without any due process to determine whether the property owner was the responsible party.  The property owner is penalized (in this case $645,000) without any determination or due process as to responsibility.  In addition (the double dip) the property owner loses the ability to recover the loss in value which the State can still do because it can collect remediation costs.  That is the definition of violation of due process.

Additionally, since the cleanup costs being deducted against the fair market value for the subject property were created only because of the public improvement being built by the WisDOT, the determination of just compensation for Ryan had been wrongfully diminished in violation of his rights under W.S.§32.09z95)(b).  In order to comply with this statute, the costs associated with contamination remediation must not be considered in determining just compensation in this case.

Regarding #2 above, admitting contamination and remediation costs into this case would be especially egregious where the appraiser has ignored USPAP methodology, typical market norms, and failed to provide a nexus between the remediation costs and the value reductions.  The WisDOT’s cost discount is entirely speculative, and we believe their appraisal report, or at least any reference to the Site Conditions adjustment, must be excluded.  At trial, the WisDOT’s appraiser acknowledged that he did not use the impaired value analysis prescribed in the USPAP Advisory Opinion 9 (AO-9) or by the Appraisal Institute.

For those interested in reading more, we’ve included our Supreme Court brief.  We’ll provide an update once a decision is given.

What’s buzzing in the eminent domain arena this week?   It’s been a mixed bag of hot topics making the headlines; everything from proposed eminent domain legislation reform to more land grabs in New York.

Here’s what caught our eye this week:

Willets Point Eminent Domain New York:  In 2004, NYC created the Willets Point Advisory Committee (WPAC), chaired by Borough President Helen Marshall, to help advise the City’s planning efforts for redevelopment in Willets Point.  This project is requiring the acquisition, through eminent domain if necessary, of land owned by small businesses nestled with in a 62 acre site in Queens to pave the way for large corporate owned hotels, retails facilities, and housing complexes, ect.

The nine Willets Point business owners in the first phase of the redevelopment plan who have not signed purchase agreements with the city received eminent domain notices from the city Economic Development Corp. Monday.  Representatives of the property owners state that the condemnation of these properties violates statements by the city in court documents indicating that it would wait until after a pending state Department of Transportation review of ramps on the Van Wyck Expressway.

Read more

Montana HB 240: Montana is following in the footsteps of its almost-neighbor Utah by proposing legislation that will give the state of Montana eminent domain authority to take back federally owned land.  Currently, approximately 30% of land in Montana is owned by the federal government.  Read HB 240

Iowa House File 64: This bill will make it more challenging for condemning authorities to use eminent domain in Iowa.  The bill stipulates that the property acquisition phase of a project cannot begin without signed authorization of the governor. It also changes the standard of proof in eminent domain cases from a “preponderance of the evidence” to “clear and convincing evidence.  Also included in the bill would be a prohibition on the condemnation of property on the National Register of Historic Places. It would also prohibit any project that receives state funding or assistance through specified economic development, tourism or community betterment programs to be defined as “public use” and adds reasonable attorney fees, up to $100,000, to be reimbursed to the property owner by the acquiring agency.

Read the Iowa Independent article on the topic

Nevada Eminent Domain: Senate House Bill 86: Nevada’s 130-year-old legal provision giving mining companies the right of eminent domain might be buried because of an unlikely coalition of liberal and conservative forces.  The bill was introduced by Sen. Sheila Leslie, D-Reno who took interest in this issue when she read about a case in Elko in which a mining company was seeking to use the power to acquire ranch property.

Read the Las Vegas Review Journal article on the topic

Texas Senate Bill 18: Texas SB 18, which mirrors HB 279, was recently approved by the Texas State Senate.  This bill prohibits a government agency or private entity from taking property through eminent domain “if the taking is not for a public use.” The measure also requires that property owners receive a bona fide offer, along with a buy-back option if an intended project is not started within ten years.

We agree with OnesNewsNow that reported Marc Shriber’s comments.  Mark tracks land-use policy for the Competitive Enterprise Institute (CEI), and states “They’re basically paying lip service to the property rights arguments,” he contends. “Now, they’re saying you can only use this for public use. That’s been well-established by the courts. You can’t come out and say, ‘We’re taking this to give this to a private developer.’ You’ve always had to couch in that language that this is in some way in the public purpose.”

Scribner adds that the Senate has failed to amend the blight guidelines, including the determination of what classifies as blight.

However, we don’t agree with his statement here: “Governments can still condemn entire areas as blighted, even when you’ll have properties within the area that aren’t blighted.”  We argue that Proposition 11, which was passed in 2009, forces municipalities to evaluate each parcel and property individually before designating it as ‘blighted’.  This essentially prevents large scale redevelopment/economic development projects from occurring in areas where only a portion of the property is blighted.

In a previous blog entry Necessity Test to be Litigated in Wyoming Eminent Domain Case, we discussed a recent eminent domain case in Wyoming that challenged the necessity test.

In this case, property owners Bob and Cynthia Schlidt  claimed that the state was taking 210 feet more than what was necessary to complete the new 2-lane road construction project.  The state argued they needed a wider ROW in order to control erosion and build embankments.  Additionally, they claimed that they will eventually widen the road to four lanes, which will require more property.

As a quick review of eminent domain law, you should know that the government can only use their power of eminent domain if the taking is for a public use and if the property owner is payed just compensation.  Additionally, there is the issue of necessity, which I consider a sub-class of public use.  Necessity is the test to determine the amount of property needed to adequately undertake the public purpose.  A condemning authority can only acquire the amount of property necessary to accomplish the public use.  This case challenges the necessity test, which will prevent the government from acquiring the additional 210 feet if the owners are successful at pursuing their claim.

We agreed that the property owner’s claim was justified.  Even though the Wyoming Department of Transportation was planning on widening the road to four lanes at a future date, that does not justify them acquiring additional ROW for this future road widening project.  They can only acquire what is necessary to complete the planned project, which is a two-lane road.

This case was recent litigated, and the Natrona County Judge, Scott Skavdahl, ruled in favor of the property owners by stating the commission did not have the right to condemn more land than necessary for a two-lane highway.   Eminent domain laws must be strictly interpreted in favor of landowners, and the commission didn’t make its case, Skavdahl wrote. “While it may be ideal, ‘necessity’ is required, and [the Wyoming Transportation Commission] has not established necessity.”

Although the government had the authority to use eminent domain to acquire some of their land, they clearly abused their eminent domain authority by attempting to acquire more land than necessary.

Wyoming Tribune Article

Two Harlem property owners are at the forefront of yet another eminent domain dispute involving Columbia University and New York’s Empire State Development Corp (ESDC).  This is a classic land grab case where government and big business are testing the reaches of their eminent domain authority for development and redevelopment.

The project:  Columbia University Expansion which includes redeveloping 17-acres in a neighborhood called Manhattanville from W. 125th to W. 133rd (between Broadway and 12th Avenue) just north of Columbia’s existing 36-acre campus.

The Property Owners:  The only remaining property owners in the project’s footprint:  Gurnam Singh and Parminder Kaur, who own two gas stations, and Nicholas Sprayregen, who owns four buildings for his Tuck-It-Away Storage business.

The Conflict: After announcing the project in 2003, Columbia University threatened “eminent domain” and quickly and amicably acquired all but 2 properties contained within the project’s footprint.  Negotiations could not be reached with these owners, so In 2008, the State hired consultant AKRF to conduct a blight study.  AKRF evaluated each of the 67 lots in the neighborhood and determined that there were high enough instances of physically poor conditions, emptied properties, and underdevelopment to label the area “blighted”.  In New York, the blight designation provides government with the necessary means to use eminent domain to acquire property.

Is the property really blighted?  The concept of “blight” is a controversial term at the heart of this case and other similar cases in New York.  Because New York’s statutory definition of “blight” is so vague, government agencies can easily obtain a “blight” designation in order to use eminent domain to acquire property.  Norman Siegel, civil rights attorney for Sprayregen and Sing said it best when he stated, “nobody really knows what it (blight) is”.  He further emphasizes that understanding the inherent flaws in the blight law is essential—mainly that blight is a vague tool crafted to be whatever government wants it to be.

Timeline:

December 2008:  the New York Empire State Development Corporation (ESDC) voted unanimously to invoke eminent domain.

January 21, 2009: Singh, Kaur, and Sprayregen filed a petition against the ESDC.  The petition alleged that the area was neither blighted nor intended for civic use and therefore eminent domain cannot be used.

December 2009: the Appellate Division of the New York State Supreme Court blocked Columbia’s proposed expansion. The Appellate Court found that the area was, in fact, not blighted and therefore ESDC could not use eminent domain.

June 2010:  the New York State Court of Appeals ruled unanimously to overturn the lower court’s ruling and upheld the state’s determination that the area was blighted– giving Columbia University the right to seize the remaining land.  The ruling cited a similar eminent domain case last year involving the Atlantic Yards Project in Brooklyn where the ESDC was condemning property on behalf of development giant Bruce Ratner, of Forest City Enterprises, for a new Net’s stadium, the Barclay’s Center, and a vast commercial and residential development project.  “We ruled for Atlantic Yards, and if we could rule in favor of a basketball arena, surely we could rule for a nonprofit university,” the court said in its decision, which was written by Judge Carmen Beauchamp Ciparick.

Fall 2010: The property owners petitioned the U.S. Supreme Court to for Certiorari who will announce Monday, December 13th 2010 whether to deny or grant.

Here is an exert from a Huffington Post article earlier this week, where Nick Sprayregen stated why the US Supreme Court should grant Certiorari:

As envisioned in our constitution, eminent domain is supposed to be for public uses — projects the public will own and use — such as a road or a post office. Eminent domain is not for private institutions like Columbia to expand their profit-making efforts beyond what the free market would allow. I believe that what Columbia has been trying to do is illegal, and I hope our highest court will agree. However, regardless of the outcome of my case, I know that what Columbia and New York have done to the people of West Harlem is unfair and un-American.

Unfortunately, New York is one of only seven states that have not passed post-Kelo reform aimed at curbing eminent domain abuse.  Several New York lawmakers have attempted to do so, but failed after receiving opposition from the Bloomberg administration.  Until New York passes eminent domain legislation addressing “blight” and the right to take, this type of abuse will continue.

I was surprised yet happy to read that District Court Judge Scott Skavdahl in Natrona County, Wyoming ruled that a case involving the state of Wyoming’s right to take property from a private owner can proceed to trial.  The condemning authority in this case is the Wyoming Department of Transportation (WYDOT), who is attempting to acquire property from private owners for a road construction project.

Based upon a Casper Star Tribune article, it appears that the issues to be litigated are necessity and whether or not the state followed the eminent domain laws by making a good faith effort to acquire the property prior to initiating condemnation procedures.

In Wyoming, prior to initiating condemnation procedures, a condemning authority must make a reasonable effort to acquire the property by negotiation (Wyo. Stat. § 1-26-509).   Additionally, the condemning authority’s initial written offer must be made at least 90 days before commencing a condemnation proceeding (Wyo. Stat. § 1-26-509).  These are just several examples of steps a condemning authority must take in order to make a good faith effort to acquire property prior to initiating condemnation procedures.

The public necessity issue in this case relates to the amount of property the state is attempting to acquire.  The property owners claim that the state is taking 210 feet more than what is necessary to complete the project.  The state argues they need a wider ROW in order to control erosion and build embankments.  Additionally, they claim they will eventually widen the road to four lanes, which would require more property.

In order for the government, or condemning authority, to use eminent domain to acquire property, several conditions must be met:  the taking must be for a public use and the property owner must be paid just compensation.  There is also the issue of necessity, which I consider a sub-class of public use. Necessity is the test to determine the amount of property needed to adequately undertake the public purpose.  If a public road requires a 100-foot wide strip of land, a strip of land 200 feet wide could not be taken because it would exceed what was necessary to accomplish the public purpose and thereby fail the test of necessity.

In this case, the issue of public use is met because the acquisition is for a road construction project, and the issue of just compensation can be litigated during the eminent domain proceeding.  The issue of necessity, however, has not been fully satisfied in this case.  WYDOT can only acquire the amount of the property necessary to construct a two lane road.  If the amount of property they are attempting to acquire is more than what is necessary to construct the 2 lane road, then the taking does meet the necessity test.

While it’s clear that some property must be acquired in order to complete this project, it’s not overly apparent how much property should be acquired, and therefore a trial seems necessary. Fortunately for the property owners, Wyo.Stat. § 16-7-116 states that reasonable attorney’s fees will be reimbursed to a property owner if the court finds that the property can not be taken by eminent domain.

In an effort to provide affordable housing for their staff and faculty, the University of Notre Dame has teamed up with the Northeast Neighborhood Revitalization Organization and the City of South Bend, Indiana to build a new neighborhood comprised of 55 new single family homes.

The new neighborhood, to be known as Eddy Knolls, required the acquisition of private residences that were demolished for the new development.  While most of the property was acquired amicably, several owners have yet to reach a settlement.  The City is stating that the acquisition of these remaining properties is not for the actual development but for the construction of a proposed street that will service the new development.

James Masters, attorney for one of the property owners disagrees: “I think there’s a question here as to whether they really need to take their properties for a street.” “They could put that street anywhere. I think this process is designed to skirt around the protections of the law, and I don’t like it,” Masters said.  Does the taking meet the ‘public use’ challenge when the road work would never have been done without the private development?

The courts will likely not interfere with the city’s right to take their property for the purpose of a road project because this taking falls under the category of ‘public use’.  It doesn’t matter if the road could be constructed elsewhere, or that the road is servicing a private development; many courts have ruled on this before and have uniformly said that if the taking meets the public use for instance of a road, it is not the province of the court to determine whether the placement of the road is the wisest decision.  It’s easy to forget that all roads service private owners, so the private development argument has no merit unless the taking is for the development itself.

Here’s a local news report of this story:

The $50.1 Million dollar water plant project in the City of Ames, Iowa has caused quite a commotion not only with property owners in the area, but with State legislators as well.

The Ames Tribune published a story regarding the City of Ames plan to construct a water plant on 44 acres of federally owned land comprising part of the National Animal Disease Center.  However, as stated by Mike Gruber, senior policy advisor in Washington DC, standard appropriations rules do not give the NADC authority to sell the property outright to the City of Ames.  The NADC can instead participate in a land swap with the city of Ames, and they have expressed interest in four farm parcels located North and West of their current facility on North Dayton Avenue.  Unfortunately, this is privately owned land, and while the City would attempt to negotiate a sale with the owners, they have mentioned using eminent domain if necessary.

In order to avoid land acquisitions from private owners, Congressman Tom Latham has introduced a bill that would allow the City of Ames to purchase the land owned by the NADC.  According to the article written by Jennifer Meyer of the Ames Tribune, they hope Congress will authorize the cash transaction before the Nov. 2 election. Gruber will meet with the House Committee on Agriculture to see whether the bill will move forward individually or as part of a similar land deposition in Florida.

If the City of Ames can not purchase the land directly from the NADC and they instead need to acquire privately owned land for a land swap, does this acquisition meet the public use requirements necessary for eminent domain?   While the water plant clearly meets the public use requirement, the property owners could argue that the acquisition itself does not serve the public because the land will not be used for the project.  However, I think the courts would not look at the situation so narrowly, and would instead determine that the acquisition is necessary in order for the project to be completed, and therefore serves a public purpose.

The City of Ames and the State of Iowa have shown respect for property owner rights by striving to get this bill passed, and it appears that they will be successful.

Learn more about the Iowa Eminent Domain laws.