Nebraska Eminent Domain Lawyer

Representing Property Owners Nationwide

As a property owner facing the forced surrender of your property by the government, you have rights. Nebraska eminent domain laws are clear, but you may need an attorney to protect your rights under these laws to the fullest extent. That is where the team at Domina Law Group pc llo comes in the picture. Our attorneys understand the intricacies of eminent domain laws, condemnation proceedings and the rights of Nebraska property owners in these matters. We are prepared to fight on your behalf to seek the desired result to your case, whether this is just compensation or perhaps the protection of your property altogether.

Raisin farmers in California, toll-road operators in Michigan, farmers in Missouri, and business owners, farmers, and ranchers in Nebraska. These are a few of the clients for whom we have provided services when the government or private companies took land by use of its eminent domain or condemnation power. Our suits against cities, counties, states, and even the federal government have given us expertise far beyond most trial lawyers in the specialized area of eminent domain.

Widespread flooding led hundreds of Missouri River flood victims to consult us. Government action to close off access led to our work for an Arizona property owner. A taking of a centennial family farm, one homesteaded by ancestors of the current owner, led the owner to court with us guiding the way. Since 2010 we have played a leading role in support of opponents of the TransCanada Keystone XL Pipeline.

We understand the Fifth Amendment's takings clause. We understand condemnation, know what it feels like to have property taken, and can handle eminent domain and condemnation cases of any kind across the country.

Read Dave Domina's feature article – " Eminent Domain & For-Profit Energy Companies: Avoiding Unrest with Landowners"

Eminent Domain Defined

The term "eminent domain" refers to the right of a government to obtain private property for public use. In the United States, the government may seize property owned by an individual or business even without the consent of the property owner, but due process must be followed and the owner must be compensated. This is a unique and complex area of law that will be impacted by State and Federal legislation and case law; thus it is important to involve a lawyer who has experience with these particular matters.

Compensation, Your Rights and How a Lawyer Can Help

Though the government may take private property for public use, certain rules apply. The Fifth Amendment to the U.S. Constitution protects property owners from government seizure without just compensation. The Fourteenth Amendment protects property owners from condemnation without due process. Eminent domain laws in Nebraska are set forth in Chapter 76 of Article 7 of the Nebraska Revised Statutes, and these address the steps that the state must take when acquiring property, including how property is to be condemned and how property owners are to be compensated. They are also addressed in Section X-6 of the Nebraska Constitution.

Eminent domain laws are complex and it is far too easy for a property owner to have his or her rights violated without the protection of an attorney. If you have received notice that your property may be seized for public use, make sure you act quickly to discuss the matter with a legal professional who is familiar with all laws that may apply. You deserve fair compensation if your property is to be taken and may even be able to protect your property from being acquired, depending on the circumstances.

Rights of Nebraska Property Owners

American property owners are protected from improper condemnation proceedings and are entitled to just compensation if their property is subject to seizure under eminent domain. The Fifth Amendment to the U.S. Constitution clearly states "...nor shall private property be taken for public use, without just compensation." State laws also address eminent domain and property owners' rights. Though Nebraska Revised Statutes §76-725 (2011) provides that Nebraska can acquire lands necessary for any state use through eminent domain, condemnation of such property must be carried out following specific steps, and property owners still have rights in these proceedings.

The government cannot simply step in and take a taxpayer's property without notice or due process. Property owners have a right to be notified that their property is subject to eminent domain and may negotiate with the public authority that wishes to acquire the property. The public authority may offer a certain amount of money to the owner for the property in question based upon an appraisal, and the property owner has the right to negotiate for a higher amount or deny the offer, taking legal action to pursue just compensation.

A property owner has the right to appeal an assessment made by appraisers with the district court of the county in which the petition to initiate condemnation proceedings was filed. This appeal must be filed within 30 days of the appraisers' report.

A property owner has the right to challenge the validity of the acquisition on the grounds that it does not meet the necessary requirements for public purpose or public necessity. For example, the government must want the land for a valid purpose, such as to build a road, park, school or other purpose that serves the needs or well-being of the public. If the property owner can prove that the proposed condemnation does not serve this purpose, the proceedings may be stopped.

Nebraska property owners have the right to just compensation if part or all of their property is seized by the government for public use. Compensation may be determined based off fair market value as well as any economic impact that the loss of such property will have on the owner. For example, if the owner was using the land for crops, he or she may be entitled to compensation not only for the value of the land but for the loss of income that would have resulted from crops grown on the land. In some cases, compensation may also be awarded to pay for legal fees for an attorney that the property owner hires to challenge condemnation proceedings.

According to Nebraska Revised Statutes §76-702 (2011), if the public authority has taken property or has used and damaged property without following condemnation proceedings, the property owner may file a petition with the county judge in the county where the property is located, to seek compensation. Damages will be determined and paid to the property owner if he or she is found in the right.

Eminent Domain Compensation Types

What is "just" compensation under eminent domain? In order to acquire property through eminent domain, the government must provide "just" compensation to the property owner. In Nebraska, the type and amount of compensation to which a landowner may be entitled is laid out in Chapter 76 of Article 7 of the Nebraska Revised Statutes. In accordance with state law, a property owner may be entitled to compensation for the fair market value of the property as well as severance damages and possibly other damages as well, such as relocation and even attorney fees. This compensation will vary on a case by case basis.

Fair Market Value

The general definition of fair market value is an estimate of the worth of property based on what a buyer would most likely pay a seller, if both parties were willing, knowledgeable and not pressured to buy or sell. For real property subject to eminent domain, this may include its location, the current market and the condition of the property.

Severance Damages

In addition to receiving compensation for the fair market value of the property, the owner may be entitled to severance damages. These are damages caused by the loss of the property. For example, a landowner may use the property for cattle. If the government seizes this property, the owner may be entitled to compensation for economic losses suffered by being unable to utilize that land for grazing or other purposes. Other severance damages may include devaluation caused by property cut down into multiple portions by an eminent domain seizure in the middle, damage to structures on the property, fence damage, crop damage and more.

Other Compensation

In addition to fair market value and severance damages, it is possible that a property owner will be entitled to compensation for relocation and all related costs, for attorney fees and other economic damages. There are even situations where a property owner who had intended to use land for a specific purpose and had taken steps to develop the land to carry out that purpose would be entitled to compensation for the income those improvements would have garnered.

Eminent Domain FAQs

• What are some of the reasons the government may want to seize my property?

There are many different reasons that a public authority may wish to acquire private property. Some of the most common include parks, roads, schools or other public buildings, and other purposes that are meant to serve the public need or public good.

• How does it work? Will the government make me an offer?

Yes, the government will make you an offer based on the perceived fair market value of your property. Though the government is supposed to make a fair offer, it is important to have a qualified appraiser determine whether the amount is just. An attorney can also offer helpful insight regarding the fairness of the offer. If you decide the offer is unfair, you can undergo negotiations with the government, similarly to how you may negotiate with a regular buyer.

• What happens if I refuse the government's offer?

You can refuse the government's offer, but at this point they may initiate condemnation proceedings to take the property without your consent. You may still be entitled to just compensation. A lawsuit may be filed to take the property, but this will not negatively impact your credit score or allege that you have done anything wrong. It is done simply to acquire the property through the proper legal channels.

• Can I stop the government from taking my property?

In some situations, a landowner may be able to stop the government from taking property, but it will be necessary to prove that it does not meet the requirements for public necessity or public purpose. Hiring an attorney at this point is highly recommended, as you will face court proceedings to prove the government is in the wrong.

• What compensation may I be entitled to?

Even if the government has the right to take your property under Nebraska eminent domain laws, you are entitled to a fair amount of money not only for the value of the land but for any economic losses you may experience by losing the land. Determining the right amount of compensation can be difficult, particularly when condemnation proceedings take a portion of your land, split it in half, affect crops or cattle or have an impact on land access. All of these factors will need to be taken into account when determining a "just" amount.

Eminent Domain Examples

Consider the following example scenarios:

• Example 1: Land Taken Decreases the Usefulness of a Property –In this scenario, there is a car dealership that is situated on a highway. Because the highway is heavily trafficked, it is being widened. The car dealership displays its vehicles by placing them on a strip of land along the highway in front of the building. This strip of land though is going to be taken away in order to widen the highway, thereby eliminating the car dealership's display area. There are both direct and indirect implications here. Directly, damages will be proportionate to the value of the land being taken. Indirectly, the taking of the land also harm's the dealership's ability to display its merchandise, which will in turn inevitably hurt the business' sales.
• Example 2: Government Easement – In this scenario, there is a 25,000 square foot commercial property. 15,000 square feet of this property is a public easement which means that this particular section of land on the commercial property cannot be used for private purposes. Throw into the mix a 50-year-old septic system on the property that will need to be replaced soon. What happens if the municipality has a minimum lot size of 20,000 square feet to warrant a septic system? This particular property is also prohibited from using holding tanks and public sewer systems do not service the property.
  • While the government is not taking the property, there are still damages related to the government's ownership/easement. Because of this, there are no direct or apparent damages, but there are hidden damages. The owner is allowed the use of all 25,000 square feet of his property, but after you take away the portion that the government owns, he only has 10,000 square feet. The septic system is old and will fail soon. When this happens, the owner cannot replace it because zoning codes require a minimum of 20,000 square feet. Without a working septic system and no other options, the owner will be virtually unable to use his property.
• Example 3: Noncontiguous Parcels –In this scenario, there is a lumberyard that spans across two parcels of land. On one parcel is the main building with the parking lot and on the other parcel is the storage building/open yard area. The two parcels of land that the lumberyard owns and operates on do not run together, but a street separates them. Without both parcels, the lumberyard cannot function as a business. In this scenario, the government wants to condemn one of the parcels of land. Directly, the damages would be equal to the total value of the condemned land. Indirectly, it is not just the one parcel of land that is being affected. Because the lumberyard needs both parcels to operate, condemning one parcel will inevitably result in the inability of the lumberyard to operate.
• Example 4: Road Project Makes Property Nonconforming – In this scenario, there is a commercial property that sits about 35 feet away from the road. Comparative to the size of the parcel of land it sits on, the building is undersized and could use an addition. In this particular municipality, properties must have a 25-foot front yard setback. If the government embarks on a project to widen the road, the building will lose 20 feet of depth across the front side of its property. The direct damage is the value of the land the government is acquiring.
  • This means that the building will now only have a front yard setback of 15 feet which does not meet the municipality's requirement and is now considered a nonconforming property. Not only this, but additions to the building are no longer possible unless the property owner obtains a zoning variance, which is not guaranteed.
• Example 5: Access Loss – In another highway-widening scenario, a highway is being expanded to four lanes with limited access. The only way to access a particular parcel of land is from this highway. Access to the highway will no longer be possible because the government taking a narrow strip for the expansion. Not only is the government taking away a strip of land from the property owner, it is taking away the only access to this parcel of land. If a new access cannot be obtained or is extremely difficult to obtain, then indirect damages could equal the total property value.
• Example 6: Loss of Visibility – In this scenario, a commercial property is situated along a four-lane highway. In an effort to upgrade the highway, overpasses and ramps are being constructed. Because of this upgrade, the highway will be lowered a total of 20 feet in front of the commercial property, resulting directly in a partial loss of land to build a retaining wall for the highway. In some states, a loss of visibility can also be considered when calculating severance damages. The loss of visibility alone is not enough to warrant compensation, only in conjunction with land loss.

Example 7: A landmark decision by the Supreme Court regarding Berman v. Parker, 348 U.S. 26 (1954) resulted in the interpretation of the clause in the Fifth Amendment, "...nor shall private property be taken for public use, without just compensation," holding that private property could be taken for public purpose with just compensation.

Example 8: One of the most famous eminent domain cases took place in 1978. In Penn Central Transportation Co. v. New York City, the Penn Central Transportation Company wanted to construct an office tower above Grand Central Terminal. The company's plans were denied by the New York City Landmarks Preservation Commission, which was called on to approve the addition because Grand Central Terminal was considered a landmark. Penn Central attempted to sue the Commission saying that they should be entitled to compensation under eminent domain rules, as the Commission was essentially taking their right to the property for public use. The Supreme Court ruled against Penn Central.

Example 9: In a 1992 case, Lucas v. South Carolina Coastal Council, the Supreme Court ruled that preventing a landowner from gaining economic benefit from land subject to eminent domain had the same effect as actually taking the land, thus entitling the landowner to compensation. This particular case addressed coastal land. The government's acquisition deprived the owner of any economic benefit from the land.

Example 10: One of the most notable failed cases of eminent domain occurred in 1965 when the government seized land from hundreds of landowners to build a dam across the Delaware River, six miles upstream from the Delaware Water Gap. The plan fell through after the land had been seized and is now preserved as the Delaware Water Gap National Recreation Area.

Example 11: Another case, Kelo v. City of New London (2005) is of particular note because it resulted in a Supreme Court ruling that a city could exercise its right to property under eminent domain by acquiring private homes and transferring these to another private property developer as part of a local economic development project. The decision was close, with a 5-4 vote. It caused a considerable amount of controversy because homeowners saw that their property was being taken and given to other private parties, not necessarily for the public benefit as should be required under eminent domain laws.

Domina Law Group - Case Studies

Eminent Doman of All Shapes and Sizes

Domina Law is well known for representing farmers and ranchers who oppose the TransCanada Keystone XL pipeline land grab and for defending nearly 60 condemnation lawsuits against TransCanada successfully getting them all dismissed.

For decades we have also represented landowners all over the country in eminent domain battles over land and similar takings cases over personal property and crops.

One such case made it all the way to the United States Supreme Court where the Court voted 9 to 0 in favor of Domina Law’s clients, a group of raisin producers near Fresno, California.

Condemnation cases are typically more run of the mill and often involve utility companies wanting additional right of way or area across landowner’s property for high voltage power lines or similar infrastructure projects. Although the nature of the projects are not necessarily always controversial, if you are the one whose livelihood, business practices, property, and family are being affected, it can be very serious and sometimes you feel hopeless.

Domina Law represented families confronted with condemnation by the Nebraska Public Power District—one of only two state public power districts in all 50 states with Alaska being the other—and defended the families in the condemnation and taking lawsuits. After an appeal from the County Court to the District Court in litigation including discovery and development of evidence for trial, Domina Law was able to secure settlements that were multiples of the initial offers by Nebraska Public Power District.

If you, or someone you know, is confronted with eminent domain or condemnation actions, please contact us today!