Home | Nebraska Eminent Domain

Nebraska's Eminent Domain Laws and Property Rights

The procedure for exercising eminent domain in Nebraska is set forth in Nebraska’s statutes. Virtually all public agencies are granted the power of eminent domain and all follow the same procedure. Nebraska case law provides for the full compensation for all loss of property value resulting from a taking for public use, but the case law also carves out a number of areas of loss where less than full compensation or no compensation is allowed. Condemning agencies are required by law to negotiate in good faith before condemning, but this has been defined by our courts in such a way as to neither require true negotiations nor good faith efforts.

Overall, Nebraska does a good job of weighing the rights of the owner against the rights of the public, but legislative reform is still needed in several areas, including a requirement that the condemning agency must deliver to the property owner a copy of the agency’s appraisal when making an offer to acquire property; requiring the condemning agency to pay the owner’s attorney and appraiser fees in order to make the owner whole, and a recognition of damages for business loss resulting from the taking.

Meet OCA's Nebraska Attorney

William G. Blake, CRE

William G. Blake, CRE

Over more than 35 years of practice, William Blake has amassed a wealth of experience in eminent domain, real estate and commercial disputes litigating cases across Nebraska.

A SUMMARY OF NEBRASKA'S EMINENT DOMAIN LAWS

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

  • Who Can Exercise Eminent Domain Powers?

    Virtually all public bodies in Nebraska have the power to acquire property for public use, granted by the Nebraska legislature. This includes cities and counties, the State itself, Natural Resource Districts and Power Districts, to name a few. Additionally, a number of private entities have been granted the power, such as railroads and pipelines

  • What Are the Legal Requirements or Pre-Requisites for Exercising the Power?

    The condemning agency must obtain all needed approvals prior to filing for condemnation. In most cases a public informational hearing is required after notice to all affected property owners, and in most cases the condemning agency must obtain an appraisal of the property before commencing negotiations for the property interests to be acquired. The condemnor must also contact the owner before condemning and must make an offer of compensation based on the appraisal and attempt to convince the owner to accept the offer. The condemning agency is to separately contact each owner of the property interest that will be acquired, but this is often overlooked.

    If negotiations are unsuccessful, the agency must file a condemnation proceeding in county court, asking for a board of three appraisers to make the initial determination of the amount of compensation. The board has no authority other than to decide the amount of compensation. Once the board enters an award of compensation and the award is paid into court, the condemnor may take possession.

  • What Limitations or Defenses Exist?

    There are no defenses or limitations in County Court to the condemnation action. Indeed, if the condemning agency's Petition states a public taking, the County Judge has no authority other than to appoint the three appraisers and to to schedule the compensation hearing.

    If an appeal of the County Court award is taken to District Court, then the owner has numerous potential challenges, although some of them have little likelihood of being successful. The good faith negotiation process can be challenged, along with the question of whether the taking is for a public use, and whether the extent of the taking is needed. Of course, the procedural steps that are required to be followed by the authority can also be challenged.

  • What Constitutes a Public Purpose?

    The Constitutions of the United States and the State of Nebraska speak to just compensation and public use. Public use has become almost synonymous with public purpose and even public good. Nebraska passed legislation following the infamous Kelo case to prohibit acquiring private property for economic development purposes, although the difference between economic development and redevelopment of blighted and substandard areas is often difficult to define.

    In general, public purpose includes any use by the condemning agency that is consistent with the purposes for which the agency is empowered to act.

  • How is Just Compensation Detemined?

    Just Compensation is based on loss of property value. Each and every item of annoyance and inconvenience is to be considered, to the extent that, when considered together, they impact the fair market value of the property. However, court decisions have carved out a number of items that cannot be considered, most of which fall under the umbrella of the exercise of the government’s “police power”. In most cases the loss of value is a matter of real estate appraisals. If the owner and the agency cannot agree, the determination is made first by a board of three appraisers in County Court, and by a jury of twelve residents of the county if it is appealed to the District Court.

  • How is Fair Market Value Determined?

    The definition of fair market value under Nebraska law is “the price that someone ready to sell, but not required to do so, would be willing to accept in payment for the property, and that someone ready to buy, but not required to do so, would be willing to pay for the property.” NJI2d 13.02. Value is determined as of the date of the taking.

  • What About Recovering Damages to Remaining Property?

    The property owner is entitled to receive the loss of value of the property taken and any decrease in the value of the remaining property caused by the taking.

  • Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

    Unfortunately, the property owner does not generally recover attorney and expert fees or costs in Nebraska. If the matter is settled before court action, owners must pay their own fees. Fees are allowed if the matter goes to court and is either dismissed for lack of good faith negotiations or for lack of authority to condemn or for lack of public purpose or need. If it goes to District court on appeal, in certain situations the judge is required to determine a reasonable amount of attorney and expert fees to be paid to the owner by the agency. In many cases, the litigation court costs are paid by the agency.

Nebraska

Blake Austin Law Firm, LLP
301 South 13th St.
Suite 101
Lincoln, NE 68508
Tel: (402) 480-7451
wblake@blakeaustinlaw.com

William Blake is frequently invited to speak, locally and nationally, on issues relating to the condemnation of real property and private property rights and is recognized for his many written works regarding the law of eminent domain. Additionally, he has been sought out by local and national media outlets for his insights regarding eminent domain and has most recently commented on TransCanada’s use of eminent domain to acquire property for the Keystone XL Pipeline through NebraskaBill Blake is the Editor of Fifty State Survey: The Law of Eminent Domain, First Chair Press, (2012) published for the American Bar Association and is the author of  “Just Compensation” in Nebraska: A Manual for Owners. He has served as website editor and chair for the Committee on Condemnation, Zoning and Land Use for the American Bar Association Section of Litigation, and continues to serve as the editor of updates to The Law of Eminent Domain. Bill is an active member of his community holding membership in the Lincoln West Optimists Foundation and providing pro bono legal representation to the Lincoln Parks Foundation.

Speaking Engagements

  • Half Moon Education, Land Laws for Civil Engineers and Land Surveyors, “Eminent Domain and Condemnation Law,” December 11, 2014, Omaha, NE.
  • American Law Institute, Condemnation 101: How to Prepare and Present an Eminent Domain Case, “The Usual Suspects: Typical Witnesses and Common Issues in a Condemnation Case,” January 23, 2014, New Orleans, LA
  • American Law Institute-American Bar Association, Condemnation 101: Making the Complex Simple in Eminent Domain, “Discovery in Condemnation, a Plan and Purpose,” February 2011, Coral Gables, FL.
  • American Law Institute-American Bar Association, Condemnation 101: How to Prepare and Present an Eminent Domain Case, “Voir Dire: Selecting a Jury in a Post-Kelo Era While in a Market Recession,” February 2010, Scottsdale, AZ.

Publications

Professional Affiliations

  • Committee on Condemnation, Zoning and Land Use for the American Bar Association Section of Litigation, Member and Chairperson (2012-2013)
  • Committee on Condemnation, Zoning and Land Use for the American Bar Association Section of Litigation, Website Editor (2009-2012)
  • Nebraska State Bar, House of Delegates (2004-2011)
  • Lincoln West Optimists Foundation, Member (1999-present)
  • Designated Member, The Counselors of Real Estate®, www.cre.org, an international organization of real estate professionals recognized as the leading advisors in complex real property matters. Bill is among the fewer than 50 practicing attorneys who hold a CRE® designation.

Education

  • University of Nebraska College of Law, Juris Doctor, 1975
  • Graceland College, Iowa, Bachelor of Science, magna cum laude, 1972

Bar Admission and Memberships

  • Nebraska, 1975
  • U.S. District Court District of Nebraska, 1975
  • Member, American Bar Association
  • Member, Nebraska Bar Association
  • Member, Lincoln Bar Association

Honors and Awards

  • The William S. Ballard Award for written work exemplifying the high standards of content maintained in Real Estate Issues, the professional journal published by The Counselors of Real Estate, 2015
  • The Best Lawyers in America®, Eminent Domain and Condemnation Law

William Blake is frequently invited to speak, locally and nationally, on issues relating to the condemnation of real property and private property rights and is recognized for his many written works regarding the law of eminent domain. Additionally, he has been sought out by local and national media outlets for his insights regarding eminent domain and has most recently commented on TransCanada’s use of eminent domain to acquire property for the Keystone XL Pipeline through NebraskaBill Blake is the Editor of Fifty State Survey: The Law of Eminent Domain, First Chair Press, (2012) published for the American Bar Association and is the author of  “Just Compensation” in Nebraska: A Manual for Owners. He has served as website editor and chair for the Committee on Condemnation, Zoning and Land Use for the American Bar Association Section of Litigation, and continues to serve as the editor of updates to The Law of Eminent Domain. Bill is an active member of his community holding membership in the Lincoln West Optimists Foundation and providing pro bono legal representation to the Lincoln Parks Foundation.

Speaking Engagements

  • Half Moon Education, Land Laws for Civil Engineers and Land Surveyors, “Eminent Domain and Condemnation Law,” December 11, 2014, Omaha, NE.
  • American Law Institute, Condemnation 101: How to Prepare and Present an Eminent Domain Case, “The Usual Suspects: Typical Witnesses and Common Issues in a Condemnation Case,” January 23, 2014, New Orleans, LA
  • American Law Institute-American Bar Association, Condemnation 101: Making the Complex Simple in Eminent Domain, “Discovery in Condemnation, a Plan and Purpose,” February 2011, Coral Gables, FL.
  • American Law Institute-American Bar Association, Condemnation 101: How to Prepare and Present an Eminent Domain Case, “Voir Dire: Selecting a Jury in a Post-Kelo Era While in a Market Recession,” February 2010, Scottsdale, AZ.

Publications

Professional Affiliations

  • Committee on Condemnation, Zoning and Land Use for the American Bar Association Section of Litigation, Member and Chairperson (2012-2013)
  • Committee on Condemnation, Zoning and Land Use for the American Bar Association Section of Litigation, Website Editor (2009-2012)
  • Nebraska State Bar, House of Delegates (2004-2011)
  • Lincoln West Optimists Foundation, Member (1999-present)
  • Designated Member, The Counselors of Real Estate®, www.cre.org, an international organization of real estate professionals recognized as the leading advisors in complex real property matters. Bill is among the fewer than 50 practicing attorneys who hold a CRE® designation.
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