Eminent Domain: Theirs for the Taking?

We might be cheering when traffic circles are installed to curb accident occurrences or when roads are widened to accommodate an increase in traffic. Over time, country fields can give way to schools and public parks as a result of growing populations. Done in the name of progress, these projects certainly provide a public benefit, but they can come with private detriment. It is commonly the case that private parties hold legal title to the land needed for these public improvements. For this reason, it is important for all landowners to understand their rights when their private property might be seized for a public purpose.

Eminent domain is the legal doctrine by which a governmental body is permitted to condemn private property for public use. Often called a “taking,” this ominous sounding legal power might seem unopposable, but it is no foregone conclusion that any proposed taking will be permitted as constitutional. The landowner has various grounds on which to challenge a taking because the exercise of this power must conform to legal requirements. It is for the government to show that its exercise of eminent domain does not violate the constitution or state law.

First, any taking of private land must be for public use. Pennsylvania’s Property Rights Protection Act amending Title 26 expressly limits the powers of state and local governments to condemn private property for use by private entities. Outside of the enumerated exceptions, the government must show that its intended purpose for the land serves a public benefit and is not being used for a private enterprise. Common examples of recognized public purposes are roadways and schools.

Second, the government must pay the private owner just compensation for the property. The private owner is not relegated to taking just any offer extended by the government. The fair market value of the property is the standard measure, but this measurement will change in the event that only a portion of the property is taken. When only a portion of the property is taken, just compensation will be the fair market value of the entire property less the value of the portion remaining (fair market value minus the portion not being taken).

In the ideal situation, the landowner and the government will reach an agreement regarding the sale price and proceed with the property transfer without court intervention. When the parties cannot agree on a price, or when the landowner does not wish to sell, a condemnation action will commence. Not all condemnation cases are resolved in favor of the government. Pennsylvania caselaw provides many examples of attempted takings which were not permitted by the courts, so it is important to understand your rights and how you can fight to protect your property.

If you have been notified that the government intends to seize your property, or if you are facing a condemnation action, the attorneys at Cornerstone Law can help. Contact us to schedule a consultation today.