Abusive Condemnation Actions

This Article is written by Owners’ Counsel of America for general informational purposes only.  It is intended to assist property owners who may be facing a taking of their property as a result of an improper or abusive act of eminent domain. This Article is not to be viewed as providing legal advice or to be considered as a substitute for consulting with an experienced eminent domain, takings or property rights lawyer on the matters covered herein.  

Because the government possesses the legal power to take property without the owner’s consent, most property owners believe that they have no defense to an eminent domain taking once they become the target of one. And while it is true that there are limited grounds upon which to challenge a condemnation action, there have been occasions where the power was used in such an abusive and improper way that the property owner was able to prevent the taking.

So, what are some of the reasons that might lead a court to dismiss or preclude a condemnation action from going forward for reasons other than a lack of public use or legal authority?

Below are a few examples for you to think about. 

Pre-Textual Takings

All condemning authorities will claim that they are taking property for a proper public purpose, which is a basic requirement in order to exercise the power of eminent domain. But what if the facts don’t support a condemnor’s claim of public use or purpose? What if the government publicly states it is taking the property for one purpose, when in reality the taking is for a entirely different (and oftentimes improper) purpose?

When government bodies say one thing but the facts support something else, the property owner may be able to argue that the taking is pre-textual. A pre-text taking simply means that the taking is being disguised as a legitimate taking, when the real objective is to advance either an unlawful taking or at the very least a questionable taking.

Pre-text or pre-textual takings often occur in situations where the government is not trying to construct or build a new project, but rather is seeking to prevent the property from being put to a use that it (or its’ constituents ) do not like or want. In other words, to prevent the undesirable use from occurring, the governmental body will invoke it’s power of eminent domain as a means of exerting control over the ultimate use of the property.

Here’s a classic example: a property permitted for the construction of a  landfill is taken as a public park, even though prior to the landfill being permitted there had been no plan or mention of such a park and a park is not really needed. In reality, the government decides to take the property for a park to preclude the construction of a landfill.

Public parks, open space and other uses that don’t require development of the land or an investment in costly infrastructure are often the default uses that condemning authorities come up with in order to justify a pre-textual taking.  If you believe the taking of your property is a pre-text for some other improper reason or purpose, consult with an experienced eminent domain lawyer to determine if you have a good basis for challenging the taking.

Excess or Excessive Takings

While the law differs from jurisdiction to jurisdiction, in most states condemning authorities are not allowed to take more property than is needed to fulfill a public use or purpose.

And while many courts will defer to a condemnor’s determination of precisely how much property is needed for a specific project or purpose, requiring the owner to prove bad faith or fraud in order to overturn such deference, there have been cases where the property owner was successful in proving that the taking was excessive.

Here is an example: in a down or suppressed real estate market an urban renewal authority decides to take more property than is needed for redevelopment of a designated area because it “may” develop the property sometime in the future and it can purchase the property now for a good price.

Aggressive and Oppressive Actions

While many condemnors treat property owners fairly, others have been known to act with undue aggression in acquiring property for a public project. When condemnors cross the line from fair treatment to aggressive or oppressive actions against property owners, courts have not shied away from striking down such actions.

In one case, a condemnor decided to play hardball with a property owner for not agreeing to the condemnor’s initial offer to purchase. Instead of negotiating further with the owner, the condemnor opted to acquire all the other properties needed for its project, thereby leaving the non-accepting property owner in the middle of an ongoing construction project. The court did not appreciate such malicious actions.

Proving that a condemnation action is something other than an expression of the government’s legitimate need to acquire property for a lawful and necessary public project depends on the individual facts of each case. The experienced lawyers who make up Owners’ Counsel of America are well aware of what unique facts may drive an abusive condemnation action. If you believe you will be or are the subject of such a taking reach out to one today.