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by Susie Taylor

The following is the third 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. The second article was in the Feb. 18 Buckeye Farm News and focused on the procedure an entity uses to "take" property using eminent domain. In this article, we’ll hone in on a landowner’s options when faced with eminent domain.

You may feel that you have no recourse after you are approached by an entity with eminent domain authority that wants a portion of your land, but landowners can react in several ways.

Here are some of those options:

• Help plan the project. "Usually plans are already complete by the time a landowner learns an entity is interested in a specific parcel," according to Nan Still, OFBF director of agricultural law information. "But there are those rare occasions when that’s not the case, and a landowner may be able to have an impact in the whole planning process."
• Participate in the entity’s appraisal process. "Landowners should know when someone is going to be on their land to make an appraisal," Still explained. "The landowner can be available during the appraisal to point out things the entity may not know and to answer questions the entity can’t answer."
• Analyze the offer. Landowners don’t need to feel hurried into a response to an offer. However, do not reject the offer until you have had a chance to fully evaluate it. "As a landowner, you have the right to analyze the offer and to get the best advice possible."
• Accept the offer. "If you’re satisfied with the offer, then go for it."
• Negotiate the offer. "But if you’re not satisfied, the landowner is allowed to make counteroffers to the agency seeking the property." Your counteroffer should be based on objective proof of the value of your land and not just your feelings. The best way to do this to get your own independent appraisal from someone qualified to do eminent domain-type evaluations. If you are unable to reach an agreement, this appraiser will then be your expert witness at trial.
• Refuse the offer. "And if you can’t come up with an acceptable offer, you can refuse without fear of being fined, jailed or penalized in any way for refusing the offer." By refusing an entity’s offer, the landowner presses the entity to acquire the property through a court proceeding.
• Challenge the entity’s "right to take." To challenge, a landowner must prove in court that the entity does not have the legal right to appropriate property through eminent domain. There may be a question of whether the project is a necessity.
• Challenge the compensation. And if the landowner and entity can’t reach an agreement on compensation for the property, a court proceeding will make that determination.

Probably one of the greatest options a landowner has is to obtain the best advice possible. "Knowledge is powerful," according to Still. "The more you know about eminent domain and the true value of your land, the better able you will be to negotiate an acceptable agreement."

For more information on eminent domain, contact Still at 614-677-2714.