Frequently Asked Eminent Domain Questions For Kansas And Missouri Landowners
What is eminent domain?
Eminent domain is the inherent power of a governmental entity to take private property and convert it to public use. This power may be used without the landowner's consent, though the landowner must be paid just compensation.
When is the power of eminent domain used?
Eminent domain is used to acquire private property when it is needed for public use. Eminent domain could be used by condemning authorities in virtually any type of public improvement project designed for public infrastructure or public use. These include street or highway construction, railroad projects, utility projects involving water, sewer, or energy lines or facilities, airport expansion projects, flood control projects, or the creation or expansion of public parks or trail systems. Depending on the state, the power of eminent domain may also be available under limited circumstances for economic purposes.
Who has the power of eminent domain?
Federal, state, and local governmental entities generally have the power of eminent domain. Although it varies by state, the power of eminent domain is typically granted through the state constitution or statutes to state departments, cities and counties. States also grant eminent domain authority to quasi-governmental agencies like utility companies, school districts, port authorities, historical societies, biological surveys, industrial districts, or public building commissions.
What is just compensation?
Just compensation is a required payment to a landowner when private property is taken for public use. In Kansas and Missouri, just compensation is defined by statute, but is based on the theory of fair market value.
What is condemnation?
Condemnation refers to the formal act of exercising the power of eminent domain or the procedure that a condemning authority must follow to force the sale of a landowner's property. It begins when a condemning authority files a court petition. The procedure that follows is set by state law and ultimately establishes just compensation and transfers the private property to the condemning authority.
What rights do property owners have?
Property owners are always entitled to just compensation for property acquired for public use. Depending on the property acquired, a landowner might also be entitled to relocation benefits or other sources of compensation. In addition, property owners are always entitled to due process to ensure that the public project, condemnation, and compensation award fulfill the requisite legal requirements. A property owner's rights in eminent domain are numerous and complex, and they require the consideration of an experienced attorney.
What are a condemning authority's obligations when acquiring land for public use?
The primary concern in the eminent domain process is that just compensation be determined to be a fair amount for the property taken. Although the condemnation process is designed to establish a fair value, a thorough understanding of the legal standards, condemnation procedure, and appraisal process ensures that the system is not abused by either party.
Aside from compensation, a condemning authority must address numerous obligations when acquiring private property for public use. For instance, when federal funds are used in any phase of the program or project or a project results in the displacement of a person or business, the rules of the Federal Uniform Relocation Assistance and Real Property Acquisitions Policies Act of 1970 apply.
During the condemnation process, condemning authorities must comply with multiple procedural requirements. While condemnation procedures are typically established by statute, the process often requires the interpretation of administrative law, state and federal case law, and the application of local jurisdictional rules. The act also provides for relocation assistance payments when a condemning authority's action displaces a person or business.
What if compensation is not fair?
Either the landowner or a condemning authority may appeal the award of just compensation.
What are relocation benefits?
Relocation benefits consist of certain assistance prescribed by the uniform act. Relocation benefits for residents may include relocation advisory services, residential moving costs, replacement housing costs, increased mortgage interest costs, other incidental expenses, and other payments identified in the federal act and related regulations.
Relocation benefits for businesses may include advisory services, business moving costs, business reestablishment expenses, expenses incurred in searching for a replacement property, a fixed relocation payment, and other payments identified in the federal act and related regulations.
When must the government provide relocation benefits?
Whenever a project is partially or fully funded by the federal government, the condemning authority must comply with the relocation benefits requirements in the uniform act.
Kansas statutes require compliance with the uniform act whenever real property is acquired by any condemning authority and that acquisition will result in the displacement of any person.
Can the power of eminent domain be used for economic purposes?
In Kansas, the acquisition of private property by eminent domain for private use is prohibited. However, it may be authorized in certain limited circumstances, enumerated by K.S.A. 26-501b.
Missouri statutes do not allow the use of eminent domain solely for economic development. However, eminent domain may be used for economic development in a "blighted area."
Does Orrick & Erskine provide services outside of eminent domain?
Yes, we offer a wide variety of services in a number of practice areas. These services include, family law, probate and estate planning, traffic law, corporate litigation, business transactions, and other real estate work. Our firm will work to help serve your specific needs and work to get the results you want.