Eminent Domain Report

One of the most vexing aspects of eminent domain for many property and business owners is the fundamental fact that the owner does not get to decide whether to sell the property.  I cannot recall the number of initial client meetings I've had over the years that began with the client asking "How do I stop this from happening?"

In most cases, my clients are disappointed to hear my answer:  "You can't."  But this answer is overly simplified, because there are actually several grounds for preventing the government from condemning property. 

A recent post on the Biersdorf & Associates eminent domain blog, "The Right to Take in the Eminent Domain Process: A Brief Overview," walks through, in a fairly straight forward way, some of the ways in which an owner can challenge right to take.  I think the piece represents a good starting point for someone asking the "how do I stop them" question.   The post explains that right to take challenges typically revolve around the government's "public use and necessity" findings, which often these days turns on claims that the property being condemned is blighted.

Owners thinking of challenging right to take should review the Biersdorf piece, but should do so with some additional background in mind with respect to California eminent domain procedures. 

In particular, owners should always think about the reasons for challenging right to take.  Often, even a successful right to take challenge accomplishes little more than delay.  This is because the government can often correct whatever irregularities caused the successful right to take challenge and then simply file the eminent domain action again.  It is crucial to keep that in mind before embarking down an expensive right to take fight. 

Does the fact that the government may fix the problem mean that challenging right to take is a fool's game?  Not necessarily.  Consider these possibilities:

• In some cases, the mere fact of delay can defeat an entire project, meaning even a temporary victory may for practical purposes be permanent. 
• In some cases, the costs of a delay may be so massive that the government will offer a substantial settlement in order to avoid the risk of fighting right to take, making this a good tactic if the ultimate goal is to obtain the highest compensation, not necessarily to prevent the taking from occurring. 
• In a rapidly rising real estate market, delay can result in a much more favorable date of value (of course, in a falling market, "winning" the delay associated with a right to take challenge may ultimately prove costly for the owner).
• And, of course, in some cases, the flaw in the government's right to take simply cannot be cured, meaning a victory really does prevent the taking.

Thus while, I rarely recommend them to my clients, with the right combination of facts and circumstances, right to take challenges can be pivotal to an overall litigation strategy, and no property owner should waive its ability to challenge a taking without having a discussion with a qualified eminent domain attorney.  

(Note that in California, many right to take challenges are waived by the owner's failure to object at the hearing on the government's precondemnation Resolution of Necessity, and all right to take challenges are waived if the owner withdraws the funds the government typically places on deposit at the outset of an eminent domain case.)