By: Mark S. Silver, Esq.
The Department of Transportation, school districts, sewer and water authorities, certain pipeline companies, some electric companies, and various other government agencies have the power to acquire private property for public purpose. Without such power, many important public works projects that provide benefits to us all could not be undertaken. Pursuant to the Constitution, a property owner is entitled to just compensation for the taking of his private property.
Attorneys with experience in eminent domain (condemnation for public purpose) and qualified real estate appraisers can provide valuable assistance to a property owner facing condemnation. Sometimes the offer made to the property owner by the acquiring entity is fair; sometimes it is not. In determining what is just compensation, the attorney and appraiser will evaluate whether the taking has resulted in a restriction on the use of the property following construction, as well as whether the taking has reduced or eliminated more profitable uses of the property.
Early involvement by professionals on behalf of the property owner is critical to establish and to document a claim for compensation, as well as to negotiate the most favorable terms of the taking for the property owner. For example, it is possible to negotiate a 60" depth, rather than the standard 48" depth, for a pipeline easement that crosses cultivated fields. It is also possible to relocate easements, as well as access routes to them, to areas that create the least functional disturbance to the land owner. Further, additional protections to the property owner that can be negotiated include: tree removal or storage of usable timber, separation of topsoil cover from sub-grade material, and separation of rock in excess of a specific diameter from the backfill material so as to enhance crop development after the installation is complete.
Property owners can contest the condemnation of their property on several bases, such as the lack of a legitimate public purpose, the lack of authority to condemn and failure of the condemning authority to follow required legal procedures. Yet, in most instances, a property owner's money and efforts are better spent on maximizing the just compensation that is paid for the condemned property.
Owners of agricultural property have unique protections in certain circumstances, especially if the property is enrolled in an agricultural security area that has been approved by the local municipality. If applicable, the condemnor, before filing a condemnation action, must obtain a determination from the Agricultural Land Condemnation Approval Board (ALCAB) that there is no alternative to the taking of this particular agricultural property. The condemnor can have a difficult time satisfying that standard.
The law in Pennsylvania includes a provision that the condemning authority, in most instances, is obligated to reimburse the property owner up to a maximum of $4,000 toward professional fees. This can assist to offset initial expenses incurred to obtain an initial review of the matter on behalf of the property owner.