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: Are there any recent changes to the law of eminent domain in Ohio?
A: Yes. In 2007, Ohio passed laws providing significant protection to landowners in eminent domain proceedings. In the past, a city could take private property and sell it to a private developer so long as the project was deemed to benefit economic development. Today, the economic development for a public purpose standard is narrower and may be applied only if the property is first deemed blighted under Ohio law.
Also, in some circumstances, the state or other condemning authority now must pay part or all costs and attorneys’ fees. For example, if an agency abandons appropriation proceedings, the court can enter a judgment against the agency for costs, witness fees and attorneys’ fees. The court also may award costs and expenses, including attorneys’ and appraisal fees, if the final award is substantially greater than the agency’s offer.
Q: I understand that many Ohio properties are being taken by eminent domain for a pipeline project. How does this work?
A: With an anticipated construction date of July 2011, Kinder Morgan of Houston has proposed to modify and expand its existing Cochin Pipeline to allow natural gas liquids to be transported from the Marcellus-producing region of Pennsylvania, West Virginia and Ohio to facilities in Ontario, Canada. The Marcellus Lateral Pipeline would cross through Ohio from Monroe to Fulton counties. Kinder Morgan is attempting to acquire easement rights to allow the use of (or access through) landowners’ properties along the pipeline’s proposed path by agreement or by eminent domain. An easement is not full ownership, but is a limited right to use the land of another such as for a power line, a pipeline, or a driveway. Under Ohio law, right and just compensation must be paid for easement property if eminent domain is used.
Q: Why should I consult an attorney in an eminent domain matter?
A: Especially in a large project such as the Marcellus Lateral Pipeline, 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 generations of landowners likely will live with an easement decision 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. You are also entitled to certain relocation expenses and, in certain cases, compensation for loss of income or goodwill.
Q: How much does an attorney cost?
A: Some attorneys will agree to 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: Is there anything 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 only assert your rights and, at the least, ensure you receive just compensation. You should also know that state law requires you to allow survey and other crews on your property to collect information. However, you can and 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 construction begins and make sure your crop yields are registered with the Farm Service Agency so you can compare future yields.
This Law You Can Use column was provided by the Ohio State Bar Association (OSBA). It was prepared by Prof. Michael Braunstein of the Ohio State University, Moritz College of Law. He is also a principal in the law firm Goldman and Braunstein, LLP, which represents landowners in eminent domain cases. The column offers general information about the law. Seek an attorney’s advice before applying this information to a legal problem.
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: Are there any recent changes to the law of eminent domain in Ohio?
A: Yes. In 2007, Ohio passed laws providing significant protection to landowners in eminent domain proceedings. In the past, a city could take private property and sell it to a private developer so long as the project was deemed to benefit economic development. Today, the economic development for a public purpose standard is narrower and may be applied only if the property is first deemed blighted under Ohio law.
Also, in some circumstances, the state or other condemning authority now must pay part or all costs and attorneys’ fees. For example, if an agency abandons appropriation proceedings, the court can enter a judgment against the agency for costs, witness fees and attorneys’ fees. The court also may award costs and expenses, including attorneys’ and appraisal fees, if the final award is substantially greater than the agency’s offer.
Q: I understand that many Ohio properties are being taken by eminent domain for a pipeline project. How does this work?
A: With an anticipated construction date of July 2011, Kinder Morgan of Houston has proposed to modify and expand its existing Cochin Pipeline to allow natural gas liquids to be transported from the Marcellus-producing region of Pennsylvania, West Virginia and Ohio to facilities in Ontario, Canada. The Marcellus Lateral Pipeline would cross through Ohio from Monroe to Fulton counties. Kinder Morgan is attempting to acquire easement rights to allow the use of (or access through) landowners’ properties along the pipeline’s proposed path by agreement or by eminent domain. An easement is not full ownership, but is a limited right to use the land of another such as for a power line, a pipeline, or a driveway. Under Ohio law, right and just compensation must be paid for easement property if eminent domain is used.
Q: Why should I consult an attorney in an eminent domain matter?
A: Especially in a large project such as the Marcellus Lateral Pipeline, 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 generations of landowners likely will live with an easement decision 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. You are also entitled to certain relocation expenses and, in certain cases, compensation for loss of income or goodwill.
Q: How much does an attorney cost?
A: Some attorneys will agree to 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: Is there anything 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 only assert your rights and, at the least, ensure you receive just compensation. You should also know that state law requires you to allow survey and other crews on your property to collect information. However, you can and 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 construction begins and make sure your crop yields are registered with the Farm Service Agency so you can compare future yields.
This Law You Can Use column was provided by the Ohio State Bar Association (OSBA). It was prepared by Prof. Michael Braunstein of the Ohio State University, Moritz College of Law. He is also a principal in the law firm Goldman and Braunstein, LLP, which represents landowners in eminent domain cases. The column offers general information about the law. Seek an attorney’s advice before applying this information to a legal problem.
Published: February 9, 2011
