Eminent domain is one of the government’s most useful (yet intrusive) powers. Our local, state, and federal governments have the inherent authority to condemn private property and convert it for public use, such as roads or government buildings. They also have the authority in certain situations to condemn property for use by another private entity, and can even grant certain corporations the power to condemn property themselves, such as an oil and gas corporation constructing a gas pipeline.
While this power is inherent in government, it can be limited in scope by lawmakers. The Pennsylvania legislature has passed laws aimed at limiting the government’s ability to take land and protecting the rights of Pennsylvania property owners.
In order to seize property, condemnors must file a “declaration of taking” with the court and then provide notice to condemnees within thirty days of the filing. The notice must contain information relating to the taking of the property, including the perceived authority for the taking, description of the subject property, the purpose of the taking, and the security (compensation of fair market value) filed for the taking. Condemnees then have 30 days to file preliminary objections if they wish to challenge the taking. Preliminary objections are the exclusive method for challenging a declaration of taking, and may contain objections to:
- The power or right of the condemnor to appropriate the condemned property;
- The sufficiency of the security;
- The declaration of taking; and
- Any other procedure followed by the condemnor.
Filing these objections will require the skill and expertise of lawyers, appraisers, and possibly even engineers—the costs of these services could be substantial. Fortunately, the Pennsylvania legislature has included multiple rules in its Eminent Domain Code designed to ensure that condemnees are fairly compensated for their lost property and reimbursed for the costs involved with defending their rights.
Compensation for Attorney and Appraisal Costs
The Code protects condemnees from costs in multiple ways. First and foremost, condemnees will be reimbursed at least $4,000 for reasonable expenses incurred for appraisal, attorney, and engineering fees. This reimbursement was put in place to materially assist property owners in making an informed judgment regarding the condemnor’s offer, thereby protecting their rights and interests. Without the promise of reimbursement, condemnees might concede to the condemnor’s terms without contest due to lack of funds.
Further, if a condemnee’s preliminary objections have the effect of terminating the taking altogether, the condemnor is required to reimburse all reasonable attorney, appraisal, and engineering fees and other costs incurred as a result of the condemnation proceedings. Full reimbursement is also required if the condemnation is initially successful but the condemnor subsequently relinquishes the property within two years.
Fair Market Value Compensation and Damages
Condemnors are required to pay condemnees “just compensation” for the taken land, as well as damages to their remaining property interest. Just compensation is calculated as the difference between the fair market value of the condemnee’s entire property interest immediately before the condemnation and the fair market value of the property interest immediately after the condemnation. This is known as the before and after rule.
For example: if a portion of a condemnee’s land is taken for the construction of a pipeline, the measure of compensation to be paid to the condemnee is the fair market value of the property taken plus any depreciation in the fair market value of the remaining property caused by the taking.
Damages may not be available, however, if such damages are deemed too remote or merely speculative. This is an area where experienced appraisers and attorneys are critical to ensure that condemnees receive what they deserve for their taken property. And because the State guarantees a reimbursement of at least $4,000 for these services, property owners should not hesitate to take all measures available when facing a condemnation of their property.
All these provisions apply to the condemnation of land for gas pipelines, such as Williams’ Atlantic Sunrise Project in Columbia, Montour, and Northumberland Counties in Pennsylvania.
–Attorneys at Kreisher Marshall & Associates, LLC
Experienced Plaintiff’s Attorneys