Clinton County Ohio farm

When does eminent domain apply?

Few laws are as reviled by landowners as the power of eminent domain. Farmers believe the government’s ability to take private property is an authority best used infrequently, said Leah Curtis, OFBF’s director of agricultural law.

“Generally we would oppose the government’s taking of farmland,” Curtis said while explaining Farm Bureau policy in a recent “Legal With Leah” podcast.

Government is empowered to take private property if it’s for “a public use.” And what is a public use? “That’s always the tricky question,” she said.

The definition of public use has been broadened to go beyond traditional uses such as roads, rail lines or utility pathways. Courts have ruled that in some cases, economic development also qualifies. If a government agency determines that a property would generate more taxes or a higher quality of life for the community, then that is also a basis for appropriating land. That power is limited; OFBF participated in an eminent domain overhaul that put restrictions on this type of taking under Ohio law.

In some cases, businesses can be granted the authority to take land. “Some private companies can use the power of eminent domain if they are putting in things like utilities that are generally going to benefit the rest of the community or the public at large,” Curtis said.

Pipeline construction in many parts of Ohio has landowners calling Farm Bureau for advice. Curtis said not all pipeline companies have the authority to do eminent domain. Questions over exactly which firms can use the power are currently being litigated in Ohio courts, and Farm Bureau is monitoring those cases.

Curtis said Farm Bureau policy on land takings is clear. “We would prefer that the government or anybody using eminent domain first try to purchase that property at a fair market price. And, generally we do oppose taking property for private use.”

In challenging a taking, the starting point often is to assess the necessity of the project. “Is this really needed, is this really going to be for a public use? That’s going to be the main issue the court is going to look at.”

Farm Bureau can help members understand the eminent domain process and point them to experienced legal counsel.

Curtis’ advice on whether landowners should get a lawyer involved early on: “Always.”

More Landowner Information

For further explanation of eminent domain and more information on other topics impacting landowners, Ohio Farm Bureau members can log in and download the Landowner Toolkit. Not a member? Join today!

Get the full list of landowner topics covered in the toolkit, with tips blogs for each in Ohio Farm Bureau’s Legal Information Series.

Also, listen to Legal with Leah, a podcast featuring Ohio Farm Bureau’s Director of Ag Law Leah Curtis discussing topics impacting landowners.

Plus, hear a Town Hall Ohio panel discussion of various private property rights.

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