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The Right to Take in the Eminent Domain Process: A Brief Overview

The Right to Take in the Eminent Domain

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.


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