Eminent Domain Report

A quick overview of Eminent Domain and its use in Texas

The power of eminent domain originates in the Fifth Amendment of the United States Constitution (Takings Clause). A State’s eminent domain authority is delegated by specific legislatively enacted statutes to state agencies, political subdivisions (i.e. cities, counties and special districts) and even some private entities, which are bound by relevant constitutional restrictions when exercising the power of eminent domain to condemn private property. Condemnation is the legal process that governmental entities and ...

Bernadette Duran-Brown and I will be presenting “Inverse Condemnation: Money & Dirt, Valuation & Legal Issues" during the Appraisal Institute’s 58th Annual Litigation Seminar on November 6, 2025. Our panel will provide an overview of inverse condemnation law, how it applies to property owners and public agencies, how it has expanded to include potential natural disasters and different valuation issues that arise in the context of this area of law..

The Appraisal Institute empowers real property valuation professionals through community, credentialing, education, body ...

When public agencies or utilities move forward with infrastructure projects, one of the most critical steps is determining exactly what property rights must be acquired. Too often, agencies focus solely on the permanent footprint of the project, only to discover late in the process that they lack authority for construction activities, staging areas or access. Early project planning on the front end helps avoid costly delays, litigation and redesign.

Existing Rights

The first analysis should always be – what rights are already in place? Many agencies or utilities hold ...

In the wake of devastating 2025 wildfires, Assembly Bill 254 stands poised to reshape California's wildfire prevention, mitigation and funding strategies. From a groundbreaking $18 billion infusion into the state’s Wildfire Fund to new rights of first refusal for insurance subrogation claims, this legislation could have sweeping implications for utility companies, insurers, and wildfire-affected communities. A host of additional provisions also target transmission infrastructure upgrades, wildfire risk reduction and clean energy innovations.

Stay tuned as we break ...

While there are many benefits to owning property in a common interest community, most people love to hate them. Condemnors should be especially wary when seeking to acquire property owned by a homeowners association. Here are a few things to consider:

1. Are CC&Rs considered property or contracts in your state? The Declaration of Covenants, Conditions, and Restrictions, or CC&Rs, is a document recorded on the property that sets out rules for ownership in the community. The covenants are reciprocal, meaning the owner of each lot has obligations to every other lot, as well as a right of ...

When a municipality acquires private property in an eminent domain case, it must first pay just compensation to the property owner. The municipality must file a complaint—a lawsuit—asking the appropriate court to enter a final order of condemnation, vesting title to the property in the municipality. Litigation can take years as the amount that the municipality must pay to the property owner is generally determined by a jury trial—at the very end of the lawsuit’s life.

This can be challenging for municipalities with tight project timelines or an immediate need to put the land ...

The contours of inverse condemnation liability are often tested by creative California plaintiff’s lawyers. In an opinion earlier this year, one Northern California Federal Court dealt with a novel lawsuit in which the Vichy Springs Resort asserted Federal and state-based inverse condemnation theories against the City of Ukiah arising out the City’s shooting range used to train its police officers (Vichy Springs Resort v. Ukiah).

According to the complaint, guests have been visiting the resort for almost two centuries to take in the curative powers of the carbonated warm ...

In 2024, in what was heralded as a big win for developers in California, the U.S. Supreme Court upended decades of California precedent and held that legislatively enacted development impact fees must satisfy the “essential nexus” and “rough proportionality” tests established in Nollan v. California Coastal Commission (1987) 483 U.S. 825 and Dolan v. City of Tigard (1994) 512 U.S. 374. Sheetz v. County of El Dorado (2024) 601 U.S. 267. But the Supreme Court did not decide whether the legislatively enacted fee program at issue in Sheetz actually failed to comply with ...

Planning and constructing public infrastructure projects takes significant time – sometimes many years. Property owners and businesses who may be impacted are left in a state of limbo, not knowing for sure whether the project will move forward, when it will move forward and what the ultimate impacts will be. This can make selling or leasing property problematic and it can also become difficult for businesses to plan effectively. Despite these impacts, unless public agencies engage in oppressive or unreasonable conduct or unreasonable delay, there is typically no liability for ...

Periodically, a new public project needs to acquire land that is already put to an existing public use. In order to condemn such land, the condemning entity must demonstrate that the proposed use is either a compatible use or a “more necessary public use.” If thorough due diligence is not conducted in the early project stages to identify and address impacted existing public uses, a condemning entity may later face a right to take challenge based on the position that the proposed use is not more necessary than the existing public use.

So, what uses qualify as a more necessary use?