Eminent domain is the power of government and certain quasi-governmental entities, like utilities, to take private property for public use. The United States Constitution permits the taking of private property for public use but only upon “just compensation”. The power of eminent domain is exercised through a process called condemnation, more on that process later.
Eminent domain is necessary for a variety of public purposes. If a City, County or State needs to create a new public road in an area where none exists then obviously it would not make sense to require private negotiation for each parcel needed. Any one owner could prevent completion of the road by simply refusing to sell creating the “hole in the donut”. The same thing can be true with respect to water lines, sewer lines and other elements of public infrastructure.
Because Kansas has created private utilities to provide for the manufacture and distribution of quasi-public services, the State – through the Kansas Corporation Commission (KCC) - has also delegated to those private entities the power of eminent domain. Electric utilities use the power of eminent domain for to build transmission and service lines. The same thing is true with respect to telecommunications or pipelines for the shipment of oil, gas and other chemicals. The logic behind this grant of power by the KCC is the same as that for the creation of new roads described above.
In 2006, the United States Supreme Court significantly expanded the use of eminent domain in Kelo v. City of New London. In Kelo, the City of New London attempted to condemn Ms. Kelo’s property in order to transfer the land to a private developer as part of an economic revitalization plan for the area. The Supreme Court ruled that the general benefit of economic growth was a permissible “public use” under the Constitution’s Takings Clause. In other words, it is permissible for government to take private land for economic development in addition to public infrastructure. The Kansas legislature responded to the Kelo decision by passing new laws to restrict when eminent domain could be used to transfer land to a private entity. Economic development eminent domain has very limited practice in Kansas today.
We all enjoy public services, but it can be frustrating and confusing to find yourself in the middle of a condemnation action. Typically, the process starts when the entity holding the power of eminent domain approaches the landowner in an effort to negotiate “just compensation.” This negotiation process is not required by the law but is often used to find some compromise without the expense of litigation. Despite the informal feeling of the negotiation, it is important to have an attorney assist you in these negotiations to avoid compromising away rights or benefits that could have been recoverable.
The process formally begins when the entity exercising eminent domain files a case in the District Court of the county where the property is located. The initial hearing in an eminent domain case is to establish that the entity claiming the power may, in fact, exercise eminent domain and that the land is necessary for their public purpose. Very few cases result in a successful contest of that question. In Kansas that question must be litigated in a completely separate effort to obtain an injunction.
If the judge finds, as most do, that the entity has the power of eminent domain and is lawfully exercising that power then the court must appoint three appraisers. These three appraisers need not be licensed appraisers but do have to own land in the county where the condemned property is located and have knowledge and experience on the subject of property value. It is very important for a landowner to be represented at this point in the process so that the appraiser selected is representative of the landowner’s interests.
After the three appraisers have been appointed, then they do their investigation. This includes meeting with the landowner at the property to hear landowner concerns and holding a public hearing where the landowner may formally present questions the landowner believes important with respect to value. The appraisers then report the value to the court and an award is made by the judge based on that report. Any party, landowner or condemning authority may appeal for a trial by jury to contest the value established by the appraisers. However, because of the cost associated with a jury trial it is far more efficient to obtain a favorable decision with the assistance of an attorney earlier in the process.
There are several eminent domain projects on the horizon in Kansas, including the I-70 Polk-Quincy Viaduct project in Topeka and the Grain Belt Express which will build a 380-mile transmission line across Kansas, Missouri and Illinois. If you own property that is impacted by any of these projects, you should get legal help right away. The experienced attorneys at Sloan Law Firm have been serving clients throughout Kansas and the midwest since 1930. Let us help you and your property rights..