Challenging Eminent Domain

An aggrieved party who objects to a government taking must have an opportunity to receive fair notice (a reasonable time to obtain legal advice and prepare a formal objection). Additionally, there must be opportunity for a fair hearing before the award (of compensation) becomes final. The hearing provides a forum to adjudicate whether or not there had been an actual taking (in the question of less than total deprivation of interest); whether the taking was for a public use; and/or whether just compensation had been made.


Prior to any governmental action to exercise its right of eminent domain, the government must negotiate in good faith with the land owner for an acceptable price for the land. Initially, most governments notify landowners of prospective action by serving a notice of intent. The contents generally describe the parameters of the property in question, the proposed use, and an offer (in dollars) of purchase. Extensive mediation and offers/counteroffers usually precede court action. A formal condemnation action only follows if an agreement cannot be reached.


Not all condemnation proceedings are the same. State laws differ on the number of hearings and the procedural structure of each, depending on the type of property in question or the intended use. Generally, a landowner may contest both the proposed taking and the amount of compensation offered. Ultimately, if administrative appeals fail, the landowner may petition in court, under the auspices of violation of constitutional rights.

Both sides may offer witness testimony and other evidence in support of their positions. Both sides may call attention to the fair market value (by expert testimony) of similar properties for comparison. Following court decision, appeals may take years, but generally does not stay the taking; if a landowner ultimately prevails on appeal, only money damages are generally available.


Initially, an objecting landowner may request either or both injunctive and monetary relief. However, if the government's action meets the legislative and constitutional criteria, the landowner may be responsible for court costs if the objection was not well-grounded or appears to have been motivated by excessive pecuniary interest.

In cases of partial takings or excessive takings, adjudication includes a determination of the percentage interest in a property which is adversely affected, and monetary award is prorated accordingly. Likewise, if the complaint is for devalued property which is not directly taken, but is adversely affected because of governmental activity or use on nearby property, adjudication includes a determination as to whether other factors have devalued the property and the monetary difference between the devalued property and its fair market value without the alleged adverse effect.

Compensation is required, effective from the date of the alleged taking. Payments not made at that time accrue interest, to which the landowner is entitled. Occasionally, subsequent actions or objections are filed months or years after the initial determination. This is especially true in the case of partial takings, e.g., easements. Over time, a government entity may engage in additional activity that exceeds in scope of the initial taking. If this causes further decrease in residual use or enjoyment still vested in the original property owner, both injunctive and monetary relief may be available.

Next Steps

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