Eminent Domain Report

Under Arizona’s Constitution, as under its federal counterpart, a condemning authority may acquire private property if the use to which the acquired property will be put is a proper public use. From the outset of any contemplated acquisition, it is imperative that a governmental entity determine that the purpose for the acquisition will constitute a public use. This article summarizes some of the law governing public use.

A judge must determine that a proposed use is “really public” once an eminent domain action is filed. Ariz. Const. Art. 2, §17; A.R.S. § 12-1132(A). Though ...

In Washington State, when a public agency determines it needs to acquire property for a public project, the agency will work directly with the private property owner to negotiate a purchase price for the property rights needed. However, if the agency reaches an impasse in the negotiations with the property owner, the public agency may turn to its eminent domain power and initiate a condemnation lawsuit. A condemnation lawsuit triggers the formal legal process for the agency to take private property for a public purpose without the owner’s consent in exchange for payment of just ...

On the first day of Christmas my client came to me and asked: “who holds title to the partridge in a pear tree that is within our new proposed right-of-way?” I replied that a partridge is a wild animal and not typically subject to private ownership, however if the landowner claims it is a “pet”, it would be considered personal property.

On the second day of Christmas, my client asked me “what do we do if we find two turtle doves on the property that we need to condemn for a new highway?” I said let’s get a right-of-entry from the landowner to do a survey and environmental testing and ...

When public agencies or utilities move forward with infrastructure projects, one of the most critical steps is determining exactly what property rights must be acquired. Too often, agencies focus solely on the permanent footprint of the project, only to discover late in the process that they lack authority for construction activities, staging areas or access. Early project planning on the front end helps avoid costly delays, litigation and redesign.

Existing Rights

The first analysis should always be – what rights are already in place? Many agencies or utilities hold ...