Eminent domain, the taking of private land for a public use, is one of the most controversial powers granted to state and local governments. A notice of proposed taking is one of the most unsetting communications a landowner can receive.
Despite the widespread use of eminent domain over the last four or five decades, property owners do have the right to defend against it.
Two of the most effective defenses are the arguments that (1) the taking is not necessary and (2) the taking does not serve a public purpose. A third argument is the assertion that the government is not willing to pay just compensation for the property in question.
Does the taking serve a public purpose?
One hundred years ago, the land that was taken through eminent domain was typically used for highways and roads, public buildings, public utilities, hospitals, schools, parks, airports and other uses that indisputably serve a public purpose. Over the last four decades, one of the most controversial uses of the power of eminent domain is the taking of land that is then conveyed to a private entity for purely private development.
In 2005, the U.S. Supreme Court ruled that such a taking satisfies the constitutional requirement of public use. In 2007, the Ohio Supreme Court ruled that a taking that is intended solely to provide an economic or financial benefit to the government or community does not satisfy the constitutional requirement of serving a public purpose. Since that decision, the use of the power of eminent domain by local governments has been sharply limited by those two rules.
Failure to follow the rules
Ohio statutes contain several procedural steps that a government agency must follow before it can invoke the power of eminent domain. The taking authority must provide written notice to the landowner of its intention to take the property. The government agency must then provide the landowner with a written good faith offer for the land, together with an appraisal of the property. These rules are intended to ensure that the government agency and the landowner engage in good faith negotiations before the case becomes a lawsuit.
Conclusion
If the government agency and the landowner are unable to agree on the terms of a sale, the case will usually become a lawsuit in which the taking power must prove that the taking is necessary and serves a public purpose. Also, a large part of such cases is usually devoted to resolution of the issue of the land’s fair market value. Most parties to complex condemnation cases retain experienced attorneys to advise them in negotiations and to appear at any trial.
