What Does the New Public Infrastructure Bill Mean For Property Owners Facing An Eminent Domain Taking?

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 the Infrastructure Investment and Jobs Act, commonly referred to as the “Public Infrastructue” bill that was recently passed by Congress. 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.  

With $1.2 trillion of federal funds approved under the Infrastructure Investment and Jobs Act to rebuild America’s infrastructure, states will soon be flooded with monies aimed at addressing a slew of road, highway, bridge, railway and dam projects. Electrical and utility projects are also part of the plan, not to mention the $65 billion set aside to upgrade broadband in many of our rural communities. 

But whether the work will involve repairing existing structures or building new ones, one thing seems certain: a significant amount of private property and right of way will be needed in order to accomplish the extensive list of projects that are currently being considered. This means that many of the property owners who are currently celebrating the infusion of fresh funds into our crumbling infrastructure, may also find themselves the source of supply for the vast amounts of property rights needed to get the job done. 

With one of the largest public use building programs about to hit the country, one can expect a corresponding surge in eminent domain activity across every sector. Eminent domain, of course, gives government entities the power to take private land for public use. In exchange, property owners must be compensated for the fair market value of their property and, in many states, damages to their remaining property caused by the taking. 

Transportation departments, country road supervisors, utility providers, water boards, railroad operators, and many other bodies and agencies responsible for building and maintaining the public projects and infrastructure that keeps our country running are already gearing up for the work that lies ahead. Rest assured they are busy figuring out what projects qualify for federal funds, what things must to be done to advance them, and what property rights will be needed to construct and complete them. 

While all of this may take some time to figure out, there are certain to be projects that are further along than others, meaning that efforts to start acquiring the private property necessary to build them will be starting soon, perhaps even within the next 6 months. Many of these projects are what are called “shovel-ready,” meaning that have been in the pipeline for many years just waiting for the funds to be made available to build them. Others are part of programs that have been around for decades and are now being funded at higher levels, thereby allowing the administrators to expand and increase their acquisition agenda.  

But what about the businesses, companies and individual property owners who will be on the receiving end of all this anticipated acquisition activity? What should they be worried about and what can they do to be ready when a right of way agent comes knocking on their door, armed with an offer in one hand and a settlement document in the other? 

Below are some useful tips and advice to prepare the individuals and businesses who will be called upon to support America’s once-in-a-generation investment in its’ public infrastructure with their most valuable asset: their property. 

Find Out What the Priority Projects Are in Your Jurisdiction 

Over the last year, newspaper articles and media outlets across the country have focused on which states are likely to benefit most from the anticipated infrastructure bill and which projects within those states are likely to be addressed first. This is not surprising, since many state and local agencies  prioritized projects within their jurisdictions, identifying those that are most critical based on the needs and safety of the public. Information on many of these projects is available through various government resources, whether on a federal, state or local level. 

As an owner of property, determining what these priority projects are in your jurisdiction, and whether your specific property may be needed to service one of them is extremely useful information to have. Knowing that you may be the subject of a future eminent domain taking is the first step in being prepared to confront it, if, and when, it actually occurs. Don’t wait until a government body decides when the time is right to inform you of a need to acquire your property; be proactive by undertaking some research on your own to determine how likely it is that you may be the subject of a condemnation taking.

Attend Public Hearings, Ask Questions, and Seek Information 

Over the next several years, most of the money under the infrastructure bill will trickle down from the federal government to states, cities, and towns who will than decide which roads get repaired, which lead pipes get replaced, and which bridges get restored. Unfortunately, with limited funds, not all needed infrastructure projects will get built. This means that those involved in the decision making process will be forced to make tradeoffs and tough choices. It is very likely, particularly on the local level, that public hearings will be held to gather public input and feedback that can subsequently be used to inform final decisions on which projects actually get green-lighted.

As a property owner who may be called upon to sacrifice your property rights for a public infrastructure project, one of the smartest things you can do is attend public hearings regarding that project. There you can learn the most current information about a project, express your concerns, and ask the many questions that you will likely have. The public hearing platform may also provide an opportunity for you to request that relevant project materials be made available, such as construction and design plans, right-of-way maps, acquisition schedules, studies and reports, etc. 

Educate Yourself About Eminent Domain Takings and Your Rights 

As in all situations, knowledge is power. And when it comes to defending yourself against a government acquisition of your property in furtherance of an infrastructure project, having some sense of the process and procedures involved in an eminent domain case, what your rights are as a property owner, and what the government’s responsibilities are as a condemning authority is very empowering.  

For over 20 years Owners’ Counsel of America has sought to educate and inform property owners about their basic rights when the power of eminent domain is being used against them. By visiting OCA’s national website at ownerscounsel.com  and perusing through its’ Landowner Library and Resource Center you can:

• Familiarize yourself about the key words and phases used in a typical eminent domain case;
• Get answers to Frequently Asked Questions (FAQ’s);
• Learn about the various stages of a typical eminent domain proceeding; 
• Read helpful articles on a variety of eminent domain and takings topics 

Additionally, as a business or company that may own property needed for a public infrastructure project there is no better way to prepare for a potential  eminent domain taking than attending the ALI-CLE Eminent Domain and Land Valuation Litigation Conference. This annual conference explores a full range of cutting-edge issues and draws professionals from across the country. It is considered the “the place to be” for all eminent domain and land use practitioners. The next such conference will be held on January 27-29, 2022 in Scottsdale, Arizona and it is not too late to register. 

Consult With An Experienced Eminent Domain Lawyer 

Eminent domain proceedings involve complicated issues such as the property’s highest and best use, the calculation of just compensation and the damages a property has suffered due to the taking. Eminent domain proceedings are a unique blend of law and appraisal theory and an effective legal counsel needs to be well-versed in both disciplines. Property condemnation can also be a confusing and stressful process. 

Having a qualified condemnation lawyer on your side to assist as you navigate the process is not only helpful, but possibly essential. The government will have experienced eminent domain counsel on its side. To protect your rights, shouldn’t you? Many property owners wait until they receive a notice of condemnation to find a lawyer capable of handling their situation or case. But finding experienced and competent lawyers who are well versed in the area of eminent domain and takings law should not be left to the last minute, when an owner is under pressure to respond to either a condemnation offer or an actual case filing or risk losing legal rights. 

The experienced lawyers who make up Owners’ Counsel of America devote a substantial portion of their practice to the representation of private property owners in eminent domain and takings cases. If you believe you will be the subject of a condemnation taking associated with the public infrastructure bill that is about to sweep the country, reach out to one today.