Eminent domain is supposed to be a last resort. If the government needs property for public use, it should first try to acquire it by way of voluntary agreement with the owners rather than by way of forcing the owners to sell involuntarily by using the government’s power of eminent domain.
Therefore, by law, before filing an eminent domain lawsuit, the government must (i) make a written offer to the owners of the property based on an appraisal of its value obtained by the government; (ii) propose a “resolution of necessity” determining that there is a public use and need for the property and that the government’s offer has been refused; (iii) give notice of, and hold, a public hearing on the resolution; and (iv) pass the resolution of necessity. In short, a resolution of necessity is the government’s formal determination that it has been unable to acquire property needed for public use through voluntary agreement with the owners and that it has become a “necessity” to use eminent domain instead to force the owners to sell.
While this is the theory, in practice the government routinely makes lowball offers based on lowball appraisals. (Our law firm typically represents clients against the government in eminent domain lawsuits for a percentage of the amount recovered over and above what the government offers before filing an eminent domain lawsuit. Therefore, we would not be in business if the government really offered fair market value.) Furthermore, the government typically drafts purchase agreements that contain terms (such as environmental warranties and indemnities) that the government could not obtain in an eminent domain judgment. Finally, there is very little negotiation. If the government’s offer is not accepted, the next move is to propose and pass a resolution necessity and move quickly on to eminent domain where impacted owners will have to defend themselves in court mostly at their own expense to obtain Just Compensation for the property taken.
The process that is supposed to be a last resort, then, is typically used by the government to obtain advantage and coerce owners into taking less than their property is worth. Determining whether there is, in fact, “necessity” is not a high standard to meet under the law. The courts typically defer to the reasonable findings of the governmental body passing the resolution.
Of course, the government understands this process and the gamesmanship behind it very well because the government uses eminent domain routinely. Most impacted property and business owners, however, are involved with eminent domain only once, and need experienced legal and appraisal help to overcome the government’s advantages and obtain best results.
Once a resolution of necessity is passed, the bulldozer of eminent domain gathers steam very quickly and moves forward primarily on the government’s schedule and at the government’s convenience. It is, therefore, critical for owners who are in the bulldozer’s path and who will be impacted by the government’s eminent domain acquisition to obtain help and bring on board a team of experienced lawyers and appraisals as soon as possible and even earlier than any resolution of necessity is passed or proposed. Contact us for a free consultation today.