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The following is the second of an on-going series about eminent domain. The first article appeared in the Dec. 3 issue of Buckeye Farm News and detailed the difference between a physical and regulatory taking. In this issue, we’ll focus on the procedure an entity uses to "take" property using eminent domain.

There are several steps involved when an entity acquires land through eminent domain according to the Ohio Revised Code – entry, negotiation and possibly a petition-to-acquire and litigation. There are several options landowners have when faced with eminent domain. Those issues will be covered in the next installment of this series.

During the "entry stage," an entity with eminent domain authority has the right to enter private property to make surveys, drillings, examinations and appraisals as long as they give the property owner between 48 hours and 30 days notice.

Ohio law requires an agency to make an effort to obtain land by negotiating a voluntary agreement with the landowner, according to Nan Still, OFBF’s director of agricultural law information. If a voluntary agreement can’t be reached, the entity must file a "petition for appropriation" in the county court where the land is located.

The landowner is notified by certified mail when such a petition is filed. The landowner has 28 days to respond and should seek legal counsel immediately. If there is no response, the court can approve the petition and establish compensation in the amount set forth in the entity’s petition.

If the landowner does respond, it would be to either question the entity’s right to take the property or to dispute the compensation offered for the land; then, the matter moves into litigation.

If the landowner questions the right to take, a hearing will be scheduled by the court and the landowner must prove the agency trying to obtain the property does not have a right to acquire it through eminent domain.

"This is quite different from what we’ve seen in the past," Still said. "It used to be that the entity had to prove it had a right to acquire; now, it’s up to the landowner to prove otherwise."

If compensation is the question, a trial will be scheduled and a jury decides the amount of compensation the landowner will receive.

If you have questions about eminent domain, contact Nan Still at 614-677-2714.