Eminent Domain

Traditionally “public use” meant government projects such as building a school, flood control, or widening a road. Since the 1950s, eminent domain has also been used to address neglected properties in slum areas. ² In general, eminent domain is a rarely used tool of last resort for local governments and Urban Renewal Authorities to address neglected properties. Before invoking the power of eminent domain, a local government typically will have attempted to work with a landowner, issued warnings and notices of violation, placed liens on the property, and attempted to negotiate a voluntary purchase. Alternatively, eminent domain may be necessary to implement a community’s approved and ongoing redevelopment plan. For more information on redevelopment plans, see Section on Urban Renewal Authorities.

The power of eminent domain is exercised through the process of condemnation. ³ Note that eminent domain condemnation proceedings are different than a property being “condemned” by a code enforcement officer under the building code.

Prerequisites

There are three requirements for eminent domain:

(1) Authority. It must be exercised by a governmental entity or an entity given eminent domain authority under the law.

In addition to the federal government and state and local governments in West Virginia, Urban Renewal Authorities, and even some private entities, such as utility companies and railroads, may exercise eminent domain. ⁴ However, the power is more limited for private entities and Urban Renewal Authorities.

(2) Public Use. The property must be put to public use.
West Virginia law sets out the public uses for which private property may be taken or damaged. ⁵ These uses include but are not limited to:

1. Development of railroads, bridges, roads, and other works of internal improvement;
2. Construction of telecommunication and power lines and stations
3. Development of energy, water, and sewer infrastructure, and specifically, infrastructure for the transport and use of coal, oil, and gas; ⁶ and
4. Construction of public buildings and outdoor spaces, such as parks and cemeteries.

(3) Just compensation must be paid to the property owner, calculated as the difference between the fair market value of the property before the condemnation and the fair market value of the property after the condemnation. ⁷

State constitutional amendments in 2006 clarified that West Virginia’s cities, towns, counties, and state agencies may not exercise eminent domain for the primary purpose of “private economic development.” Private means an activity that would result in ownership or control of the property by a private entity other than the entity exercising eminent domain. Note that the amendments contain a blight exception, leaving Urban Renewal Authorities the authority to take property through the power of eminent domain within an area designated as slum or blighted.

Funding

Governmental entities must fund eminent domain proceedings. However, if property owners wish to challenge condemnation, they usually must pay their own costs and attorney’s fees.

Special Procedures

In West Virginia, a local government or condemning authority must attempt to enter into negotiations and make an offer in good faith to purchase a property before initiating a condemnation proceeding and exercising eminent domain. ⁸

The condemnation proceeding begins with an application made by petition to the circuit court. ⁹ The petition must describe with reasonable certainty the property proposed to be taken and the interests of the parties. ¹⁰

After the circuit court judge determines that proper notice was given and that the applicant has a lawful right to take property for the purposes stated in the petition, five disinterested landowners are appointed to determine the amount of just compensation and any damages. ¹¹ Usually, “just compensation” is the only issue to be determined. However, increasingly landowners dispute whether a “public use” exists. For an extensive list of procedures required during condemnation proceedings, see Chapter 54, Article 2, Sections 1 to 21 of the West Virginia Code.

Advantages

• Clears title to property
• Disposes of any liens on the property
• Consolidates ownership
• Can facilitate redevelopment by collecting several parcels under one owner
• Can be effective where all other strategies have failed

Disadvantages

• Expensive
• Unpopular
• Often not politically feasible to implement
• Condemnation can be a complicated process due to complex rules that differ across different entities, such as development authorities and urban renewal authorities

Usage in West Virginia

Several communities use eminent domain to address neglected properties. Most communities, however, hesitate or choose not to use the tool due to its unpopularity and possible political consequences.

Community Highlight

In the 1990s, the Charleston Urban Renewal Authority (CURA) acquired a privately owned commercial parking lot by eminent domain.12 The owner sued CURA, claiming that CURA improperly exercised its power of eminent domain by not stating a legitimate intended public use in its application. The court held that CURA did state a legitimate and adequately specific public use because the property was within an area designated slum or blighted and acquiring the property was necessary to accomplish the purposes of a duly approved redevelopment plan. See Section on Urban Renewal Authorities.

¹ Dep’t of Natural Res. v. Cooper, 152 W.Va. 309, 312–13, 162 S.E.2d 281, 283–84 (1968). W. Va. Const. art. III, § 9.
² See Berman v. Parker, 348 U.S. 26 (1954). See generally Wendell E. Pritchett, The “Public Menace” of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L. & Pol’y Rev. 1 (2003) (tracing the history and rhetoric of urban renewal movement from early 1800s to the present).
³ W. Va. Code Ann. §§ 54-1-1 to -2a (West 2015).
⁴ Id. §§ 54-1-1 to -2.
⁵ Id. § 54-1-2(a).
⁶ Id.
⁷ Tennessee Gas Transmission Co. v. Fox, 134 W.Va. 106, 115–16, 58 S.E.2d 584, 590–91 (1950).
⁸ W. Va. Code Ann. § 54-1-2a (West).
⁹ Id. § 54-2-1.
¹⁰ Id. § 54-2-2.
¹¹ Id. § 54-2-5.
¹² Charleston Urban Renewal Auth. v. Courtland Co., 203 W.Va. 528, 509 S.E.2d 569 (1998).