Can You Stop Eminent Domain?

Can you stop the government or a condemning authority from taking your land? When notified that their private property is being taken by eminent domain, people usually have the instinct to fight.

Unfortunately, fighting the taking is unlikely to be successful. We’ll cover the exceptions, but for most private property owners – residential or commercial – it’s almost always more productive to focus your energy on seeking maximum compensation from an eminent domain taking.

Can the government take your land without your consent?

Yes. The eminent domain process arises from a power granted to the government under the Fifth Amendment, as well as specific state statutes. The government can even give eminent domain authority to other entities, like utilities, to serve public interests. Eminent domain power does not require your consent.

There are rules, however. Eminent domain is tremendously powerful and easily abused, and a property owner has rights when being subjected to it. Although the urge to fight eminent domain is rarely fruitful, there are a few requirements for its use.

Eminent domain – public use or public necessity requirement

Unfortunately, the legal definition of public use has been broadened to the point that it is very difficult to successfully fight condemnation. In addition to taking land for community projects such as highways, schools, and parks, the General Assembly in North Carolina can authorize the taking of “blighted” land on behalf of a private developer for economic development purposes.

The private development problem – “Blighted” properties

Ever since Kelo v. New London, where the U.S. Supreme Court upheld an eminent domain taking for private development, many states have enacted stricter controls on what is and is not considered “public use.”

In North Carolina, for a property to be taken under eminent domain and given to a private developer, that property must be declared “blighted.” But what does that mean?

According to North Carolina General Statute 160A-503(2a), a blighted parcel is a property which, by reason of:

• dilapidation,
• deterioration,
• age or obsolescence,
• inadequate provision for ventilation, light, air, sanitation, or open spaces,
• high density of population and overcrowding,
• unsanitary or unsafe conditions,
• or the existence of conditions which endanger life or property by fire and other causes,
• or any combination of such factors,

substantially impairs

• the sound growth of the community,
• is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency and crime,
• and is detrimental to the public health, safety, morals or welfare…

The list is extremely broad and yet not all-inclusive. If your property meets any of those criteria, it could be declared blighted.

Public use and the burden of proof

Generally speaking, when a condemning entity comes for your property, it has a reason. The government needs it for a road, school, library, hospital, or other such development. A public utility needs it for a power line, gas line, fiber optic line, or similar publically necessary provision.

The burden of proof, of showing that taking your land is necessary, is on the entity taking the land. Unfortunately, eminent domain laws are vague enough and interpretations so broad as to make challenges based on public use difficult and only rarely successful.

Negotiating the details of the taking during the planning stage

In the earliest stages of an eminent domain taking, it may be possible to negotiate with the government regarding their plans. The DOT will almost always bring initial plans to the public for discussion. Consult with an experienced eminent domain lawyer as soon as you know your property may be affected.

Thanks to our contingency fee arrangement, it doesn’t cost you more to get representation right away.

As long as the plans are not final, your attorney may be able to negotiate with the condemning authority and present an alternative that spares some or all of your property. This is not always possible, but may be worth exploring.

The bottom line on public use challenges

While you can try to fight eminent domain on the grounds that the project in question doesn’t really fall under the category of “public use,” or that your property is not necessary to accomplish this public use, these cases are rarely successful. Instead, work with your attorney to try and secure the highest possible compensation for your property.

The law guarantees property owners just compensation for their condemned property, but who determines what’s just or fair in your situation? You’ll hear about appraisals and fair market value, but the calculations can get very complex. And remember: the condemning entity wants your land for as little as possible.

The condemning authority will often perform an appraisal before it makes an offer but, in our collective experience, these appraisals are often wrong. They may miss a number of factors that point to a much higher fair market value of the property being taken, and a higher amount of damage to the value of the remaining property.

Fair market value is negotiable, just as a private sale price would be. To fight for just compensation in eminent domain, you want to have all the facts – and an eminent domain lawyer in your corner.

Partial takings and just compensation

The main limitation on the government’s use of eminent domain power is that it can’t take any more of your land than is necessary to accomplish their public project. In some ways, however, this can disadvantage you. The government may offer lower compensation for a partial taking, even where the remaining land is now useless to you.

Determining the damages to the remainder in eminent domain cases may require a lot of research and knowledge of the law and the land. Even savvy business owners who don’t know the eminent domain process well should consult an attorney who does to help fight for just compensation.