Eminent Domain Process, Powers and History, Part 3: Appealing a Condemnation Decision

Appealing a Condemnation Decision

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.




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