Alabama Eminent Domain
UNDERSTANDING THE BASICS OF EMINENT DOMAIN AND CONDEMNATION IN ALABAMA
The first thing to understand is that eminent domain is the name of the ‘rights’ given to the government. Condemnation is the ‘procedure’ where the government exercises those rights. “Eminent domain is the power of the sovereign, or those on whom such power has been conferred, to take property, or interests in property, for public use and upon payment of just compensation.” Pollard v. Hagan.
Alabama Code provides standards for the acquisition of property by condemnors, the conduct of condemnation actions, and the determination of just compensation. Although the purpose for the taking is generally by the government for public use; the government can assign their eminent domain rights to corporations whose actions are directed toward advancing the public use purpose.
DETERMINING PUBLIC USE
Alabama courts have consistently stated that the term ‘public use’ should be given a liberal and elastic meaning. Florence v. Williams. Alabama has ruled in several decisions that a private entity benefiting from the condemnation doesn’t rule out the taking being classified as a public purpose. Additionally, public utility companies have been allowed to exercise eminent domain because their projects are of benefit to the public. Alabama Power Co. v. Hamilton. Also, private land owners of landlocked property have been allowed to condemn an access easement across intervening property to the nearest public road. Ex parte Cater.
One of the largest court decisions to mold the capabilities of eminent domain is Kelo v. City of New London, where the U.S. Supreme Court held that a city’s decision to take property for the purpose of economic development satisfied the ‘public use’ requirement of the Fifth Amendment of the Constitution. The Kelo decision expanded the reaches of eminent domain to a dangerous range. The United States Supreme Court ruled consistently with Alabama Supreme Court decisions in that they stated ‘public use’ is to be defined broadly and with great deference to the legislative determination. One of the most important developments from Kelo, at least to Alabama, was that the U.S. Supreme Court stated that individual states could enact stricter interpretations of ‘public use’ to limit the reaches of eminent domain. Alabama did just that in Alabama Code 18-1B-1, 11-47-170, and 11-80-1, laying out exceptions for when a municipality or county would not have the right to exercise eminent domain.
Today, landowners, both residential and commercial, are most often going to experience eminent domain and condemnation relating to road widening and development, bridges, powerlines, pipelines, utilities, parking, signage, zoning, etc. Understanding legislation, case law, and deciding what to do next can be overwhelming – let us help.
DETERMINING JUST COMPENSATION
Be careful not to be tricked into thinking that a just compensation (the money you are paid for the taking) is cut and dry without any room for negotiation. Alabama Code 18-1A-170 (b) states that “if there is a partial taking, the valuation rule is the difference between the fair market value of the entire property before the taking and the fair market value of the remainder after the taking.” This sounds as simple as getting an appraisal of the landowner’s complete land before the proposed taking and subtracting the value of the landowner’s remaining land after the proposed taking. Although the method for determination is cut a dry, landing on an agreed upon appraisal/evaluation is anything but.
Some of the factors to consider when trying to land on a true just compensation are: fair market value of land, fair market value of improvements, highest and best use (to be determined by a jury at trial), residue damage, relocation benefits, and market v. income v. cost approach. Landowners are often intimidated or manipulated into accepting somebody else’s idea of just compensation – let us help.
CONTACT AN ALABAMA EMINENT DOMAIN ATTORNEY
FREQUENTLY ASKED QUESTIONS
Can I stop the condemnation of my land?
Answer: The item most often argued about during eminent domain matters is the just compensation, not the actual eminent domain and condemnation authority; however, this isn’t the case 100% of the time. Due to Alabama having stricter eminent domain rules than other states, it is possible to successfully argue that the right to condemn does not exist. This argument would initially be heard and decided in the probate court in the county which the property is located. The method of stopping the condemnation altogether would relate to the ‘public use’ argument and any exceptions that may fall in line with the legislation that Alabama created to push back on the Kelo decision described above. If it is determined that eminent domain applies and condemnation is permitted, which is typically the case, arguments about just compensation come next. The landowner may also appeal to the Circuit Court to argue the right to condemn. Navigating the pre-eminent domain action process, the probate process, and/or the Circuit Court process can be difficult without the proper experience – let us help.
Can I challenge the amount of compensation I receive?
Answer: First, the condemning authority is permitted to enter upon the real property being taken or taken from in order to conduct surveys, take photographs, do testing, and basically perform any reasonable action necessary to (a) confirm the property is suitable for the intended public use and (b) properly appraise the value of the property. After an appraisal is made, the condemning authority can offer to purchase the property interest at the full appraised value and show supporting documentation for the value determined. The initial valuation determination (if not agreed upon by parties) will involve the appointment of commissioners to hear arguments and determine just compensation. If this value is not satisfactory to you, you may appeal to the Circuit Court. You have a right to a jury trial on compensation (if timely requested) and you have several different routes to attempt to show a greater property value. Being compensated properly for your property is a very important issue that needs to be handled with absolute care – let us help.
How long does an eminent domain case last?
Answer: Some eminent domain cases can take just a few months (or even less if an agreement is reached) while others can draw out for well over a year. If your case doesn’t need litigation, you may be finished in 3-6 months. If your case does require litigation, that is when you may be looking at over a year. The biggest delay is usually related to determining a just compensation. Obviously, the greater discrepancy in value, the greater timeline to resolve. One of the quickest ways to fail to at receiving a greater compensation is to miss a deadline or fail to properly communicate – let us help.
Why should I contact an experienced eminent domain attorney immediately?
Answer: If you have reviewed this entire page, you’ll have seen how in depth and complicated some of the eminent domain process can be. Along with that, there are deadlines to meet and court/attorney communications to respond to. If you value your property, you cannot risk failing to meet a procedural requirement and as a result watch your property be taken for less than you could have possibly received. On that same line, those entities or attorneys working to take your property have their own requirements to meet. An experienced eminent domain attorney can help you meet your own requirements while at the same time work to show why the other side dropped the ball or is undervaluing the property. At the very least, it is worth reaching out to us to discuss – let us help.