Eminent Domain FAQ

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Eminent Domain FAQs about Eminent Domain Condemnation Law.

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V - Conclusion

If any clarity can be derived from all this precedent, it would appear that a claim of “de facto” taking, except where it is a “per se” (Type 1) action, the property owner will be confronted with a formidable burden of proof. Essentially, the property owner must show virtually an entire loss of value preferably coupled with a showing that the government action is of dubious effect with a showing of disproportionate burden on the property owner itself.

Governmental regulations and actions pervade everything – especially property rights and development. Governmental power can result in unfair and oppressive results. A case by case approach to the situation is not satisfactory.

Legislation is essential to more precisely set the standards for governmental action and also to give the property owner a greater (and justifiable) sense of predictability in dealing with governmental action. There should be greater assurance of relief and more precise standards set by the legislature. Uncertainty in the limits of governmental action and the rights of the affected property owner does not serve either governmental administration or a viable real estate market.

For questions or to discuss items presented in this topic, please contact Saul Fenchel.

1The “de facto” taking must be distinguished from the “condemnation blight” which will be the subject of another article.

2Further, strictly speaking, although it is not defined as a taking, an unconstitutional regulation of property can occur where there is no “nexus” between the action and a discernible public purpose -- i.e., it does not substantially “advance” a public purpose. Agins v. Tiburon, 447 U.S. 255 100 S. Ct. 2138 (1980). While constitutionally defective, it is not a “de facto” taking.

3In Lingle, the Court observed that the Court’s prior decisions intertwined the “nexus” concept (i.e., “substantially advances”) with the taking concept and that the Court’s explanation of the difference between these tests was not altogether clear:
“... The “substantially advances” formula is not a valid method of identifying compensable regulatory takings. It prescribes an inquiry in the nature of a due process test, which has no proper place in the Court's takings jurisprudence. The formula unquestionably was derived from due process precedents, since Agins supported it with citations to Nectow v. Cambridge, 277 U.S. 183, 185, 48 S.Ct. 447, 72 L.Ed. 842, and Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 71 L.Ed. 303. Although Agins' reliance on those precedents is understandable when viewed in historical context, the language the Court selected was imprecise...”