David versus Goliath: Opposing eminent domain proceedings

May 14, 2013

David versus Goliath: Opposing eminent domain proceedings

Article provided by Eminent Domain Services, LLC
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Battles are raging in a number of states in the U.S. regarding eminent domain rights of landowners, companies and governmental agencies. Eminent domain is a right that the government has to take privately owned property for projects that are for the public good. Under the United States Constitution and many state laws, landowners have many rights including the right to just compensation. But for many, the idea of standing up to the government or a mega-corporation can feel like facing off against the giant Goliath.

The law is never quite as clear as one would wish. What the words "just compensation" mean have been the subject of much controversy for all the years the United States has existed. Landowners sometimes feel like the government does not play by its own rules, or does not want to pay the true value of the property that it is taking.

The issues are even more volatile when private interests come into play. In some situations, the government "deputizes" private companies -- allowing them to use the power of eminent domain to take land for their own uses. This practice has caused cries of "foul" on more than one occasion. Many citizens find the concept of taking land for the public good at odds with the practice of taking land for private profit.

Battle lines in the Midwest

There has been considerable controversy in Wisconsin about the use of eminent domain by the American Transmission Company (ATC). ATC owns high-voltage transmission lines and uses eminent domain rights to condemn privately owned land in order to build new lines across the state. ATC is one of the first privately owned utilities, but according to an August 8, 2012, article in Wisconsin's Capital Times Newspaper, ATC is guaranteed a 12.2 percent rate of return by the federal government. The article, entitled "ATC profits nicely as it keeps the lights on" is a play on ATC's slogan. ATC's 2011 Annual Report -- available on its website http://www.atcllc.com -- indicates that in that year the company made just shy of $224 million in earnings before members' income taxes.

Another facet of the debate revolves around what happens when a company or agency uses eminent domain to take part of a parcel and leaves the landowner with a diminished parcel of land that cannot be used in the way it was being used before. Examples of this include farms that are so cut up by roads that they can no longer function as farms, or pieces of land that are landlocked. Other examples are homes that are no longer habitable because they are under high voltage transmission lines or under over-flight patterns near airports.

In these situations, the law has to determine whose burden it is to maintain and sell the remnant of land that has been rendered all but useless by the public project. Following the adage "you break it, you buy it," landowners often feel that it should be the responsibility of the state or agency to buy the damaged land and pay for its upkeep or sell it. The condemning authority often wants to leave landowners with the responsibilities and headaches of trying to market the nearly worthless pieces of property -- such as houses under a high voltage transmission lines or farms crisscrossed by freeways.

Minnesota is ground zero for this debate. The CapX2020 electrical grid project is a $2.2 billion behemoth that features 800 miles of new transmission lines. In Minnesota, a law called the "buy the farm" law requires the electrical company to buy out farmers who no longer want to own or operate their farms once a high voltage transmission line is routed through it. According to the Minnesota Star Tribune, the CapX2020 project has sparked "buy the farm" demands in record numbers by farmers who want nothing to do with the line. It goes without saying that the utility companies would generally prefer not to buy out farms that are burdened with electric lines.

Legal help is available

The laws of each state vary widely and are often so confusing as to be nearly incomprehensible to the average landowner. Oftentimes, the landowner receives a letter from the state, an agency or a private company regarding a proposed condemnation. The immediate reaction of many landowners is to call the number on the letter, but this is a mistake.

If it is possible to contact an experienced eminent domain attorney or center for the protection of landowner rights, this is the time to do it. Getting the best information possible as early as feasible in the process is vital to making sure that your rights are protected.