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Eminent Domain: When the Government Wants Your Property

Q: What is eminent domain?
A: 
Eminent domain is the power of federal, state and local governments and even certain private companies, including railroads and utilities, to take private property and devote it to a public use. An entity with this power is sometimes referred to as a “condemning authority." Taking of property by eminent domain frequently occurs in Ohio for uses such as construction of roads, libraries, or even airports. Both the U.S. and Ohio constitutions provide that property shall not be taken for a public use without the payment of just compensation.

Q: Why should I consult an attorney in an eminent domain matter?
A:
 Negotiations are very complex and each property is unique. If you are a landowner involved in easement agreement negotiations and other eminent domain proceedings, the condemning authority will try to get your consent quickly. However, it is to your advantage to slow the process and become fully informed before making any decisions. You and future landowners likely will live with an these decisions for the rest of your lives. An attorney can make sure you take the proper steps to receive just compensation and protect any other rights from being waived or lost. Not only are you entitled to just compensation for the land taken, but you are entitled to any damage to the rest of your property. This includes damage to future farming operations and development opportunities. You are also entitled to certain relocation expenses, and in some cases, compensation for loss of income or good will. 

Q: How much does an attorney cost?
A:
 Some attorneys will review your eminent domain situation without a fee. Thereafter, an attorney will sometimes agree to a contingent fee, which is a percentage of what the attorney is able to obtain for you above the government’s original offer of just compensation and above all expenses. The contingent fee structure and the new protections provided by recent changes to eminent domain law in Ohio have helped to make hiring an attorney affordable for landowners.

Q: What are some non-traditional forms of eminent domain?
A: When most people think about eminent domain, they picture a road going through their home or a pipeline through their farm. In these situations, the municipality, ODOT, or a public utility will file a petition to appropriate your property. While you may be upset that your property is being taken, appropriation proceedings are good because they are means toward receiving "just compensation." This is how eminent domain traditionally occurs.

However, what happens when the authority takes your property without first filing a petition to appropriate it (thus preventing you from "just compensation")? In this situation, you must file a motion for a "writ of mandamus" asking the court to order the authority to initiate appropriation proceedings. This is common practice when your property is taken in non-traditional ways.

For example, a non-traditional taking may occur when your property floods as the result of government activity. Government-induced flooding is an eminent domain taking if 1) the flooding is either intended by the government or is the direct, natural or probable result of government-authorized activity and 2) the flooding is either a permanent invasion or creates a permanent liability because of intermittent, but inevitably recurring, overflows.

Such a case was brought to the Supreme Court of Ohio. In 2011, after the Ohio Department of Resources (ODNR) had upgraded a spillway of Grand Lake St. Marys, many of the local residents suffered frequent, severe and persistent flooding. Because the ODNR had not initiated appropriation proceedings, the property owners filed a motion for a writ of mandamus. The Court granted the motion and compelled ODNR to initiate appropriation proceedings. Now the residents are on track to receive just compensation.

Q: What else I should know when facing an eminent domain action?
A: You should be aware that you cannot stop the government from moving forward if your property is taken (or in threat of being taken) for a public purpose. You can, however, assert your rights to ensure you receive just compensation. State law requires you to allow survey and other crews on your property to collect information, so you should schedule a time when you and your attorney can be present for any survey or site inspection and set reasonable limits. Finally, document the condition of your property before the inspections begin so that you will have the evidence if any damage is done to your property.

5/3/2013

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Michael Braunstein, a principal in the law firm Goldman and Braunstein, LLP, which represents landowners in eminent domain cases.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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