Right to Take in the Eminent Domain Process

The power of the government to forcefully take private property leads to countless legal battles and contentious debates regarding whether a taking is valid, what is just compensation, and is the property really blighted?

We get calls from hundreds of owners who ask us ‘can the government really take my property’ and ‘what can I do to stop the taking’?  In our last blog post, The Right to Take in the Eminent Domain Process: A Brief Overview, we discussed why the power of eminent domain is not unlimited, and in what situations a property owner can challenge the right to take.

California eminent domain attorney Rick Rayl posted a blog,  Short Primer on Eminent Domain Right to Take Challenges, with additional information on this subject.  He makes a valid point on how challenging the right to take can often produce little more than delay because “the government can often correct whatever irregularities caused the successful right to take challenge and then simply file the eminent domain action again”. However, it’s not all gray skies for property owners; he continues to discuss several interesting points on how challenging a right to take can benefit a property owner.  One example states “In some cases, the mere fact of delay can defeat an entire project, meaning even a temporary victory may for practical purposes be permanent”

There is one last point I would like to make regarding challenging a right to take; and this does not pertain to filing an actual claim, but instead relates to the power of the people and their right to freedom of speech.  Property owners have a voice and more importantly a VOTE.  The lack of support from a community can sometimes persuade municipalities to shelve a redevelopment project that requires the acquisition of property.  There are many examples of individuals orchestrating enough support from their community to generate national publicity in their quest to stop a project from occurring.  You might remember how public outcry coupled with the support of the Castle Coalition persuaded the city of Oak Creek, WI to stop their pursuit of 94 year old Earl Geifer’s property; and how about the recent victory for property owners in Greenfield, WI?

Although this type of grass roots opposition will not (in most cases) prevent the acquisition of property for a road construction project, bridge project, public utility project, ect, for some property owners, this could be their only remedy when facing condemnation for an economic or redevelopment related project.

Since the right to take is a hot topic amongst property owners and within the eminent domain community, I will discuss in a future blog post several scenarios that property owners think will stop a taking from occurring, but in actuality meet the eminent domain requirements.

Commonly known as condemnation, the eminent domain process is complex and can often be interpreted differently from state to state. The important thing to know is that the power of eminent domain is not totally unlimited – there are areas in which the right to take can be challenged. The challenge arises when the basic eminent domain requirements for the taking are not satisfied. In order to take property from an individual property owner, a governmental entity must satisfy two requirements.  One, the property must be used for public use, as defined in the federal constitution; and two, the property owner must be paid just compensation. There is also the issue of necessity, which is a sub class of public use.  Necessity is the test that determines the amount of property needed to adequately undertake the public purpose.  Notably: failure for the taking to fulfill the definition of public use could be a basis for stopping the taking of the property.

Challenging the Right to Take

It is important to understand that challenging the right to take is the only way to prevent the taking from occurring.  Whether you will be successful in this claim depends upon the public use and necessity test.  The issue of just compensation can not stop the taking; this issue is addressed during the eminent domain proceeding.   However, if the government fails to provide an adequate public purpose for the taking, this could stop the taking from occurring.  Also, if the taking fails to meet the necessity test, meaning the government attempts to acquire more property than what is needed to satisfy the public purpose, then the property owner could have the power to stop the taking from occurring.  Keep in mind that a necessity challenge would likely not prevent the project from occurring, but it will limit the amount of property the government can acquire, meaning it might take less of your property or it might not take any at all.

Many right to take challenges deal with the concept of blight and if the property is actually blighted.  If a property owner can prove that the condition of their property does not meet the state statutory definition of blight, then they can prevent the taking from occurring.

Public use, blighted property and the necessity requirement

In recent years, governmental entities have attempted to acquire property for the use of development or redevelopment by deeming entire areas and neighborhoods as “blighted” in order to satisfy the definition of public use.  The US Supreme Court ruled in the 1950’s that blight satisfied the public use requirement.  At that time, blight referred to a deteriorating neighborhood or property – essentially meaning that the area did not serve its intended purpose within the community.

Today, much of the controversy concerning the public use definition stems from the concept of “blighted” property. This poses the ultimate question, “Is the property actually blighted”.

Governmental entities will overuse their power to exercise eminent domain and attempt to deem a lower grade neighborhood as blighted in order to acquire the property and have the area redeveloped in order to increase their tax base. Even though the area may not be technically blighted, governments will objectively call it that to settle the public use definition.   In some states, but not all, there is no statutory definition of blight, or it is loosely defined, thus paving the way for governments to misuse this designation in order to exercise their eminent domain authority.  As a result, this area of eminent domain law is still very unsettled and interpreted differently by different states.

Challenging the right to take: You the property owner

As a property owner, you have the right to challenge the taking and this is the only way to stop the taking from occurring.   Challenging the right to take is financially taxing for most property owners and we therefore recommend that multiple owners ban together in order to share the litigation costs.  However, you should know that in most states, if you succeed, the condemning authority is responsible to reimburse you for your attorney’s fees and costs.

In some states, it’s very difficult for property owners to win a right to take claim if the issue they’re challenging is the blight designation.  In Wisconsin for example, the statutory definition of blight is loosely defined making it almost impossible to challenge a right to take based upon this issue.  In these types of cases, the courts will take a hands off approach to scrutinizing the blight designation made by the municipality, unless any egregious allegations, like fraud, emerge.

As a property owner, if you feel you would like to challenge a right to take, you should first arm yourself with knowledge by understanding your property rights as outlined by your state constitution and statutes.   You should also determine if your fees and costs will be reimbursed if you are successful.  Lastly, you should contact an eminent domain attorney to see if you have a valid claim for challenging the right to take.  Select your state to learn more about the eminent domain process and laws in your state.



The NJ Transit Executive Director James Weinstein recently announced that the state was temporarily ceasing all new work and putting a halt on additional bidding and property acquisition for the project over the next 30 days while the state re-evalutes the project budget.   This was in response to discussions with federal transportation officials who project cost overruns in the amount of $1 billion.

State officials also claimed that the Federal Transit Administration has not finalized the closing agreements for funding the project because it wants to see a plan to fix the nearly bankrupt New Jersey Transit Fund prior to releasing the funds.

The current budget for the project is $8.7 billion paid for in part by the federal government and the Port Authority of New York and New Jersey, who are each contributing $3 billion, and the state of New Jersey, who is contributing $2.7 billion.

Although all new work is suspended, existing work including a track underpass in North  Bergen and construction of the tunnel under the Palisades will continue.



Necessity Test to be Litigated in Wyoming Eminent Domain Case

August 31, 2010 [edit]

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 […]

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Filing Deadline for Atlantic Yards

August 24, 2010 [edit]

As many of you already know, there is a filing deadline of September 1st for property owners on the Atlantic Yards Project who wish to pursue an additional damages claim.
New York Eminent Domain Law states that a property owner has 2 years to file a claim for additional damages if a property owner signs the […]

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US 301 Delaware Project Update

August 16, 2010 [edit]

We recently spoke to an engineer at the Delaware Department of Transportation (DelDOT) who said that early property acquisitions have commenced.  These properties include total acquisitions and homeowners willing to sell.   The remaining properties will be acquired at a date yet to be determined.
Construction is scheduled to begin in 2012 and continue thru 2015.
Read more […]

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Attorney Fee Recovery in Abandonment Cases

July 27, 2010 [edit]

Earl Giefer, a 94 year old farmer from Oak Creek, Wisconsin, thought his fight with the city over their attempt to acquire his 25-acre property had ended.  In June, the Oak Creek City Council decided to stop their pursuit to acquire his property through eminent domain.  Now, however, the city of Oak Creek is refusing […]

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Additional Funds Approved for the I-74 Corridor Project

July 22, 2010 [edit]

Senator Tom Harkin (D-IA) has secured an additional $15 million for various transportation improvements, housing initiatives and economic development projects for the state of Iowa.  Harkin, a senior member of the Housing and Urban Development Appropriations Subcommittee, announced that the funding will be included in the Fiscal Year 2011 bill.  The FY 2011 bill was […]

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Philadelphia Airport Expansion

July 22, 2010 [edit]

A planned $5.2 billion expansion of the Philadelphia International Airport could begin construction as soon as next summer.  The plan calls for the lengthening of two runways, the construction of another and the expansion of existing parking facilities.  The airport would also build a unified ground transportation center and a new commuter terminal, among other […]

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Do Public Use Rules Apply to Remaining Owners in the Eddy Knolls Neighborhood?

July 21, 2010 [edit]

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, […]

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Second Street Redevelopment Project

July 15, 2010 [edit]

The Berks County Redevelopment Authority is moving forward with the Second Street Redevelopment and Grand Avenue Extension Project in Hamburg, Pennsylvania.  The Second Street Redevelopment Area includes commercial and industrial buildings as well as a number of residential buildings and structures.  The Redevelopment Area is bordered by State Route 61 and Schuylkill River to the […]

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