How to Challenge an Eminent Domain (Appropriation) Action?

Under the Ohio Constitution, private property may be taken only when necessary for a public use. When an eminent domain action (appropriation action) is filed against a property owner, the property owner may choose to challenge the condemning authority’s right to take the property. A property owner who wishes to challenge the taking must specifically deny the condemning authority’s right to make the appropriation, the inability of the parties to agree, and/or the necessity of the appropriation in her answer, and the property owner must also state the facts upon which those denials are based. If the property owner fails to do so, then the right to challenge the appropriation is waived. Once the property owner asserts those specific denials, the burden of proof on those issues is upon the condemning authority by a preponderance of the evidence.

Generally, a taking is not for a public use if it is for conveyance to a private commercial enterprise, economic development, or solely for the purpose of increasing public revenue. Roads, public utilities, public parks, government buildings, and educational facilities are presumed to be public uses. Moreover, a rebuttable presumption favoring the necessity of the taking is created by a public agency’s passage of a resolution or ordinance declaring the necessity of the appropriation or by a public utility or common carrier’s presentation of evidence of the necessity of the taking. Approval by a regulatory authority of an appropriation by a public utility or common carrier creates an irrebuttable presumption of necessity.

In practice, this means that it is very difficult to successfully challenge an eminent domain action (appropriation action). Nevertheless, under the right circumstances and with the right legal assistance, it is possible.

If the property owner does not dispute the condemning authority’s right and necessity for the condemnation in the answer, he still may challenge the amount of compensation owed for the taking. The court is then required to set a hearing to determine the amount of compensation owed to the property owner.