Condemnation, Eminent Domain and Landowner Rights
The taking of private property by a governmental entity or public utility for public use — commonly referred to as eminent domain or condemnation — is a unique legal proceeding that often pits the power and prowess of state and federal agencies, public authorities, cities and utilities against landowners in a battle that often seems difficult to win.
McAfee & Taft lawyers have a proven track record — both at the negotiation table and in the courtroom – of protecting the rights of commercial landowners and maximizing the “just compensation” due to them under the law, and trial lawyer Jeff Todd has been perennially honored for his work in the field of eminent domain and condemnation law by the publishers of The Best Lawyers in America.
Our record of success in representing landowners in condemnation disputes is unmatched in Oklahoma. A representative sampling of our work highlights include:
- Currently representing landowners in Oklahoma City’s historic Bricktown district affected by the extension of Oklahoma City Boulevard and the development of the OKC Streetcar route.
- Currently representing multiple landowners affected by the development of a new 21-mile turnpike that will connect Interstates 40 and 44 in eastern Oklahoma County.
- Currently representing multiple landowners across Oklahoma whose property is in the path of the proposed Plain and Eastern Cleanline transmission system.
- Successfully negotiated settlement for a landowner affected by the extension of the Kilpatrick Turnpike that will connect I-40 with Highway 52/Airport Road in the metro Oklahoma City area.
- Obtained $978,425.75 judgment following jury verdict on behalf of a real estate development company that sought just compensation in a condemnation case involving the taking of property by the Oklahoma Department of Transportation for the purpose of reworking the interchange of two interstate highways. The jury award exceeded the court-appointed commissioners’ award by 137%.
- Obtained a jury verdict on behalf of a landowner who sought just compensation in a condemnation case involving a 7.24-acre permanent easement taken by a public utility for the purpose of constructing a transmission system across the landowner’s property. The jury award exceeded the court-appointed commissioners’ award by 172%. As a result, the client/landowner was awarded its attorney’s fees, appraisal fees and costs against the utility company.
- Obtained a jury verdict on behalf of landowners who sought just compensation in a condemnation case involving the partial taking by the Oklahoma Department of Transportation of a 3.6-acre tract of land located near the junction of two major interstate highways. The jury award of nearly $1 million exceeded ODOT’s appraised value by more than 55%, and the court awarded more than $100,000 in attorney’s fees, appraisal fees and costs.
Our role in maximizing ‘just compensation’
Our commercial clients are typically businesses, large groups of landowners, individuals and families who own raw land being held for development, farm and ranch land, manufacturing facilities, office buildings and shopping centers and who face condemnation proceedings by such entities as departments of transportation, turnpike authorities, state and municipal governments, utility companies, rural water districts, and schools and universities.
We also assist landowners in obtaining compensation for damages to the value of their commercial land or other property caused by the actions of a governmental entity or utility through the process of inverse condemnation.
While some threats of condemnation can be challenged on the basis of valid public use or necessity, the vast majority of condemnation cases focus on the issue of just compensation due the landowner. Our attorneys work closely with clients, landowner groups, appraisers, real estate agents, engineers, location and development professionals, and other experts to thoroughly assess the value of the property taken as well as injury or damages to the remaining property. We are well-versed in the various techniques used by condemning authorities to get landowners to settle for a lower amount, and we know how to successfully anticipate and counter those moves. Our approach involves counseling clients throughout every possible phase of the condemnation process, advising them of their options and opportunities for maximizing their monetary recovery and non-monetary benefits every step of the way.
We will first attempt to reach an agreement with the acquisition service that makes initial contact with the landowner to purchase the land and access rights. Few landowners are familiar with the dynamics of that process and understand what can and what cannot be realistically accomplished depending on the kind of “take” that is required.
If early negotiations fail and a condemnation action is filed, we then guide clients through the complex Commissioners’ Award process whereby three commissioners are appointed to inspect the property, assess the just compensation for the taking based on instructions from the court, and then render an award. The amount of that award is important for two and only two reasons. First, the landowner is entitled to immediately be paid the award even if he decides to contest the amount at a later jury trial. Second, if the subsequent jury verdict exceeds the award by 10%, the landowner is also entitled to be paid a reasonable attorney’s fee, expert appraisal fee and expert engineering fee. The jury will never know the amount of the commissioners’ award under any circumstances, and it is irrelevant in the determination of value. There are strict rules about communications with the commissioners and sometimes complicated issues concerning the instructions given to them. At the conclusion of this stage in the process, landowners may demand a jury trial if they believe the commissioners’ award to be unjust compensation.
Prior to a jury trial to determine the fair value of loss, extensive discovery is often needed in conjunction with the careful, thorough preparation of a case. This process typically employs engineers and leading Members of the Appraisal Institute to carefully and cogently explain to a jury the true value of the land taken and how the taking adversely impacts the use of the remaining land not taken. Often this explanation involves adverse impacts to an operating business and employs state-of-the-art graphics and photographic technology to hammer home the truth. Our team has an undefeated track record in securing decisive verdicts well in excess of commissioners’ awards.
The representation of landowners in eminent domain proceedings requires us to battle powerful governmental entities and utilities with seemingly limitless resources for lawyers and experts. Subject opponents such as the Oklahoma Department of Transportation, Oklahoma Turnpike Authority, and public utility companies are worthy adversaries often fighting you with your tax dollars, turnpike fees or utility payments.
Navigating the condemnation process
Throughout this process, our highly knowledgeable and experienced attorneys help guide landowners and business owners through an ever-changing maze of legal issues as the niche area of condemnation law continues to evolve. We are often asked such questions as:
- Do they have a right to take my land?
- Who should be my first contact in the condemnation process?
- What kinds of property are threatened by eminent domain?
- Should I settle my condemnation dispute?
- Can I be compensated for damage caused to the remaining part of my land?
- What is the role of the commissioners?
- Who will pay my legal and other expenses?
- Do I have a right to a trial?
- What creative solutions can avoid a trial and maximize my compensation?
- What resources are available to protect my rights?
- Am I entitled to relocation benefits?
If you own property that is under the threat of condemnation and have questions, please call Jeff Todd at (405) 552-2269 or Michael Avery at (405) 270-6012.
Additional resources for landowners
For more information about eminent domain and the condemnation process, please check out these additional resources:
- Condemnation/Eminent Domain Frequently Asked Questions
- Eminent Domain – Part 1: Limits on the Power of Eminent Domain
- Eminent Domain – Part 2: Step-by-Step Guide to the Condemnation Process in Oklahoma
- Eminent Domain – Part 3: Practical Strategies a Landowner Should Follow to Maximize Compensation
- Eminent Domain – Part 4: Settlement or Trial?
- Oklahoma Landowner’s Bill of Rights (downloadable PDF)
- “Condemnation of Private Property for Redevelopment” — City of Oklahoma City memorandum (downloadable PDF)