Eminent domain… This is a phrase many homeowners have heard about and yet hope they never need to experience it firsthand. However, more homeowners, and landowners, are finding that small portions of their land is being used as eminent domain. If you have never heard this phrase before, eminent domain is when the government takes private property and uses it for the public. Yes, the property owner is paid for this, but sometimes eminent domain goes a little too far. This occurs when the private property is taken and the owner is not compensated properly. This is called inverse condemnation. It is difficult to know when this is happening, although a property owner will be the first to spot it.
Two Instances of Where the Government Went Too Far When Pertaining to Property Rights
Burrows v. City of Keene
The case of Burrows v. City of Keene has been the main focus of how the government has gone too far when pertaining to property rights. Prior to this case heading to court, John Burrows purchased a 124-acre parcel of land. As a real estate developer, his plan was to construct a large subdivision.
However, city planners in the City of Keene wanted to convert that same property into open space. The city chose to offer Mr. Burrows a set amount of money that was based on how they would be using the land. This meant the value of the property was being under-assessed. Mr. Burrows chose to sue the city over this.
The first court case concluded that inverse condemnation occurred. While that was a win for Mr. Burrows, the City of Keene appealed to the Supreme Court.
The Supreme Court solely used New Hampshire’s Constitution to determine that the town’s actions were unconstitutional. The court chose to award Mr. Burrows his counsel fees, as well as double the costs he incurred during the appeal process.
According to the court, “a citizen should not be compelled to bear the financial burden of protecting himself from unconstitutional abuses of power…”.
Sundell v. the Town of New London
Another prominent case that discusses the government and eminent domain is Sundell v. the Town of New London. The Sundells were lakefront property owners whose property was downstream from the town’s sewage plant that was malfunctioning. Foul odors, green slime, algae blooms, and dead fish all washed up onto their property. They claimed that the town was exercising a “taking” since they allowed this to continue without fixing the issue.
The Town of New London counter-argued that the lake waters over the high-water lines were all public property. Therefore, the issues from the malfunctioning sewage plant were not their problem.
The court sided with the property owners because the odors and dead fish were ruining their ability to enjoy their property. The decision was that inverse condemnation had occurred. The court ruled that compensation was necessary in this case.
Not every case involving the government and eminent domains is like these two. However, these nightmare cases can occur when you least expect them. If you are currently questioning an eminent domain, or think you are being taken advantage of with a potential eminent domain, contact me today to schedule a consultation.