Eminent Domain | When does a Taking Occur?

When Does Interference with Property Constitute a Taking for Eminent Domain Purposes.

I got a question the other day from one of my clients regarding when a taking actually occurs. What has happened in this particular case is a highway project has been designed that requires more right of way than is currently owned by the state. Through the design process, the precise amount of right of way needed has been figured out and a map of the new right of way limits has been drafted and is available to the public. Several property owners have seen this and are now worried that: (1) their property values are going to be greatly diminished because there are plans to put a highway through their house; and (2) they will not be able to sell the house because no one want to buy a house that some day will have a highway run through it.

My clients came to me to find out at what point a taking has occurred and compensation must be paid to a landowner. They don't want to start a fight they will lose if they don't have to.

This question regarding taking property and when it actually occurs is a common one faced by both governing bodies and landowners. Often designs are put together when no money exists to carry the design to fruition. What happens then is landowners are unhappy because they can't sell their house and the government isn't happy because they have unhappy landowners and no money to make them happy. The short solution to this problem, and what I was forced to tell my client, is that the property owners lose this battle (unless a couple of specific things happen).

Diminution in Value is Generally Not a Taking under Eminent Domain Law

The general rule of law, at least in the state I am practicing in, is that planning and plotting alone does not constitute a taking for eminent domain purposes. Other eminent domain attorneys may take your case and argue as hard as they can otherwise, but generally they will lose if only planning or even plotting has occurred. This means that in my footprint example above, even though in reality the landowner most likely can not sell his property or must sell it at a much lower price than prior to the footprint identification, no taking for eminent domain purposes has taken place.

As a practicing eminent domain attorney, I can assure you that some diminution in value does occur in this instance, and the courts even recognize that. The courts also understand the gridlock that would ensue if every landowner effected by a public improvement project could receive compensation for the loss in value of their property. No state would be able to pay for that loss in value, and the infrastructure of the country would likely crumble.

Prohibition from Land Use Can Constitute a Taking under Eminent Domain Law.

Now, the situation changes though, if you want to do something to your property that is legal, but only because of the identified footprint you are prohibited from doing it. As an eminent domain attorney, I could see a great argument for a taking under that circumstance.

For example (and this factual situation is straight of a real case), if you, as a landowner, wanted to put a Blockbuster on your property, or plat it for a residential development, you first have to go through the planning process and have it approved by the City Commission. One of the things the city commission looks at is whether or not the proposed plat conforms to zoning regulations, and other things of that nature - these are legally permissible. If, however, the commission sees that your planned subdivision is directly in the footprint of right of way needed for something else and they only allow the plat if you agree not to build in the area needed by the city, a taking has occurred. What they have done is prevent you from using and enjoying your property to its highest potential.

The reason for success in the second scenario is obvious - in addition to the loss in value caused by the public improvement footprint, the governing body is actually preventing you from using your property in a way that would normally be permissible simply because they want to protect right of way for a future project.

As always, when faced with these issues, contact an experience eminent domain attorney.

If you have any questions or comments, please feel free to leave them below.