Coping With Ed (eminent Domain)

JurisdictionKansas,United States
CitationVol. 82 No. 5 Pg. 19
Publication year2013
Coping with ED (Eminent Domain)
82 J. Kan. Bar Assn 5, 19 (2013)
Kansas Bar Journal
May, 2013

Mary Feighny


Your client hands you a petition and a hearing notice she received in the mail. The city intends to raze the building that houses her vegan deli business so that it can build a parking lot next to the new Cosco. She looks at you with a stricken expression and asks: “Can they do this?”

Never much of a constitutional scholar, you seem to recall something about the government taking private property for public purposes provided the owner receives “just compensation, ” but, the mechanics are murky. What is a “public purpose”? How is “just compensation” determined? Can the “taking” be challenged? Should I get a retainer?

This article will address these issues in a “nuts and bolts” fashion for neophytes. For seasoned condemnation attorneys, this article contains the seminal appellate court decisions on each aspect of eminent domain, including the spate of recent cases decided by the Kansas appellate courts.


The U.S. Constitution prohibits the appropriation of private property for public use without “just compensation.”[1] The Eminent Domain Procedure Act[2] (Act) establishes the process for takings in accordance with the constitutional restriction. Eminent domain is a special statutory creature and not a civil action governed by the Kansas Code of Civil Procedure.[3] It is administrative in nature rather than judicial.[4] There are no pleadings and no opportunity to raise constitutional issues, [5] or to litigate the right to invoke eminent domain or the extent of the “taking.”[6] The only way to attack an exercise of eminent domain is through a separate civil action, such as an injunction or declaratory judgment action.[7]

Essentially, once the court finds that the condemner has the power of eminent domain, and that the taking is necessary for a public purpose, the judge then proceeds to appoint three disinterested appraisers and sets a date for the filing of their report.[8] The appraisers view the property, hold a hearing, and determine the fair market value of the property.[9] Once their report is filed with the court, notification is mailed to the property owner and other interested parties.[10] While the property owner can appeal the amount of the award, the condemner acquires title, or whatever property interest was sought, as soon as the amount is paid to the court.[11] The court distributes the award among the landowner, lienholders, and any other parties with an interest in the property.[12]

Entities having authority to exercise eminent domain

The power of eminent domain belongs to each state[13] but can be delegated by state legislatures to private[14] and public entities as well as political subdivisions within the state[15] (e.g., cities, [16] counties, [17] school districts, [18] public wholesale water supply districts, [19] public utilities, [20] cemetery corporations, [21] railroads[22]). The Act must be followed regardless of whether the prospective condemner is governmental or private.[23]

Generally, eminent domain proceedings are a last and disfavored resort after attempts at negotiating a purchase or grant have failed. Clients are well-served to retain counsel during the negotiation process to ensure that the “taking” is truly for a public purpose and, if so, appropriate compensation is paid.

The petition

An authorized prospective condemner has the right to access the target property for purposes of examining and surveying it without giving rise to a trespass action, absent actual damages.[24] However, that right does not include more invasive measures to evaluate the economic viability of a prospective condemnation (e.g., subsoil testing).[25]

Once the condemner complies with any statutory or local prerequisites to commencing a condemnation action, [26] the condemner files a verified petition in the district court where the real property is located.[27] The petition must contain the following information:[28]

(1) A statement alleging the condemner’s authority to condemn and the purpose of the “taking.” [“Taking” is defined as “the use by any authorized entity of the power of eminent domain to acquire any interest in private real property.”[29] ] The burden is on the condemner to draft the petition so as to show the limitations of its taking;[30]

(2) the legal description of the property and the nature of the interest (e.g., fee simple, temporary or permanent easement); and

(3) the names of the owners, lienholders of record, and parties in possession. This includes known leasehold interests[31] but not unrecorded interests.[32]

Defects in the form of the petition that are not prejudicial will not invalidate the proceeding.[33] However, as the property rights to be taken by the condemner are determined by the petition and the appraisers’ report, [34] the better practice is to correctly identify the parties and property from the beginning. A title search will disclose interests of record. Objections to the condemnation based on statutory defects are the only challenge not foreclosed by the rule requiring a separate proceeding contesting the condemnation.[35]

Public use”

Private property can be taken only for a “public use.”[36] Usually, the public use is obvious (e.g., street, sewer, pump station, water tower, utility line). However, both the U.S. Supreme Court[37] and the Kansas appellate and federal district courts have interpreted the “public use” requirement to incorporate uses that extend beyond these traditional ones.[38]

Kansas appellate courts have interpreted the concept of “public use” very broadly.[39] In State ex rel. Tomasic v. Unified Gov’t of Wyandotte County/Kansas City, [40] the Kansas Supreme Court approved the taking of private property for construction of the Kansas Speedway race track facility. In doing so, the Court rejected the argument that the condemnation benefitted only a private entity.

This court has held that there is no precise definition of what constitutes a valid public use, and what may be considered a valid public use or purpose changes over time. [Citation omitted.] Further, this court has noted that as long as a governmental action is designed to fulfill a public purpose, the wisdom of the governmental [20] action generally is not subject to review by the courts. [Citation omitted].[41]

The U.S. Supreme Court, in Kelo v. City of New London, Connecticut, [42] considered the public use doctrine in the context of economic development when the City of New London sought to condemn private property to revitalize an economically distressed area of the city. Private property was condemned for use as a park and recreational/leisure area, hotel, and office/retail space.

In upholding the condemnation, the Court rejected earlier requirements that the condemned property had to be used by the general public. Rather, the Court interpreted “public use” to mean “public purpose, ” thus reflecting the Court’s “longstanding policy of deference to legislative judgments in this field.”[43] The Court raised but dismissed the specter that an ostensible public purpose could be simply a pretext to taking private property for a private purpose. However, practitioners representing property owners whose property is being taken for purposes where the benefit to private parties is significant should consider Justice Kennedy’s concurring opinion in Kelo, where he indicated that a more stringent review may be required when there is a showing of “impermissible favoritism of private parties.”[44]

In response to the Kelo holding, the Kansas Legislature prohibited condemning private property for the purpose of transferring it to a private entity unless one of the statutory exceptions in K.S.A. 2012 Supp. 26-501b applies.[45] As of this writing, no Kansas appellate decisions have considered this provision.

Notice of the proceeding

Notification of the hearing on the petition is published in the newspaper and both the petition and notice are mailed to the landowner and the parties named in the petition at least 14 days before the hearing.[46] The notice gives the landowner time to consider whether to file a separate action.[47] Defects in the notice or service do not invalidate the proceeding.[48]

Despite the fact that K.S.A. 26-503 requires only the mailing of notice, if there are federal tax liens, federal law requires service of the petition and hearing notice on the U.S. attorney for the district where the condemnation is proposed and mailing a copy of the petition and hearing notice, by certified mail, to the U.S. attorney general.[49] If there are state of Kansas tax liens, the author recommends mailing, by certified mail, a copy of the petition and hearing notice to both the Kansas attorney general and the secretary of the Kansas Department of Revenue.[50]

The hearing and appointment of appraisers

The court makes its findings based only upon a review of the petition.[51] If the court determines that the plaintiff/condemner has the power of eminent domain and the taking is necessary “to the lawful corporate purposes of the plaintiff, ” those findings cannot be appealed. However, if the court denies the petition, the order can be appealed to the Kansas Supreme Court.[52] Upon making the appropriate findings, the court then appoints three appraisers to value the property and sets the date for the report to be filed.[53] The appraisers must be “disinterested” residents of the county in which the petition is [25] filed. At least two of the three must have experience in valuing real estate.[54] While it is not mandatory to do so, the requirement can be satisfied by selecting appraisers licensed by either the Kansas Real Estate Commission or the Kansas Real Estate Appraisal Board.

When considering who to appoint as appraisers, the judge may entertain suggestions from the condemner and...

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