Frequently Asked Questions and Answers Regarding Eminent Domain Law:

1. What is Eminent Domain?

Eminent domain, also known as condemnation, is the power of the government to take private property for public use, even if the property owner does not want to sell. Governments most commonly use the power of eminent domain when the acquisition of real property is necessary for the completion of a public project, and the owner of the required property is unwilling to negotiate a price for its sale.

2. What is a public purpose for which the government may take property?

The Fifth Amendment of the United States Constitution and Article 1, Section 8(6) of the Nevada Constitution allow private property to be taken by eminent domain for a public purpose. Public uses for which the government might exercise its power of eminent domain include such things as parks, schools, roads, highways, libraries, police stations, fire stations redevelopment projects and other similar public uses. Nevada Revised Statute 37.010 further describes the public uses for which eminent domain may be exercised. The term public purpose has been interpreted very broadly by the Courts. The project need not be actually open to the public to constitute a public purpose. Instead, generally only a public benefit is required.

3. Can a property owner challenge the government's authority to take his or her property?

Even though most government agencies have the power of eminent domain, on occasion, a successful challenge to the government's right to take a particular property for a particular project can be made. Such challenges, however, are the exception, not the rule, and usually result only in a delay, rather than outright prevention of the government's right to take. Each case must be evaluated on its own facts and an experienced eminent domain attorney should be consulted. Seeking compensation for the taking, rather than challenging the government's right to take, will be the property or business owner's usual remedy.

4. Can a property owner challenge the amount of money the government is willing to pay for his or her property?

Yes. A property owner is entitled to full compensation for any taking and is entitled to challenge the government if they feel their initial offer was not appropriate.

5. How does the “taking” happen?

Eminent domain actions are usually started by the government first identifying a public need for private property. If the agency and the property owner cannot agree on the price to be paid, the government authorize the acquisition of the specific property, and the agency will file a complaint in court. Condemnations can be total or partial, permanent or temporary.

The government has the right to take permanent occupancy of the property, pending entry of final judgment, once it files its complaint and moves for and receives a court order. The government will normally deposit the property’s appraised amount of the just compensation with the court. The owner may withdraw the money and still reserve the right to contest the amount of compensation to be eventually awarded. Withdrawal of the money however constitutes a waiver by the owner of some other defenses, like the right of the government to take the property.

6. What is “full compensation?”

The goal in eminent domain is to measure what the property owner has lost, not what the taker has gained. Just compensation aims to put the landowner in as good a position as he would have been if his property had not been taken. The just compensation awarded must be fair not only to the property owner but to the taxpayers who pay for it. The property must be valued as though the government’s project was neither contemplated nor built. This ensures the landowner that he will not be paid a low value for his land if the project depressed it. It also ensures the condemning agency it will not pay an enhanced value for the property caused by the very project it is financing and building.

7. What is PISTOL?

PISTOL is the Constitutional Amendment passed by voters in 2008.

The initiative dubbed PISTOL, for the People's Initiative to Stop the Taking of Our Land, was introduced as a result of the United States Supreme Court's decision in Kelo v. City of New London, 545 U.S. 469 (2005). The Supreme Court ruled in a 5-4 decision that the City of New London, Connecticut, could condemn private land and convey title to private developers who wanted to build an office complex, a river front hotel and health club. The city reasoned that it was acting in the public interest, because those things would produce more property tax money than homes, and would create jobs and promote tourism.

The Kelo ruling brought fear to many homeowners who worried that their homes would become a target of eminent domain. Justice John Paul Stevens who authored Kelo, stated that states could avoid eminent domain abuses by passing laws against taking private land and transferring it to private owners. This lead to the creation of multiple initiatives in various Western states that address eminent domain.

PISTOL's aim is to prevent eminent domain abuses and to reiterate the plain meaning of the Fifth Amendment (taking private property for only public use). Property owners also believe that it will keep the government from offering less than market value for land and threatening landowners with the fear of having to pay attorney fees if they decide to contest an eminent domain action.

8. What has changed as a result of PISTOL?

• Landowners are not liable to the government for any attorney fees incurred in defending and eminent domain action;
• Property owners are entitled to have a jury decide if the project that requires the use of their land is in fact a public use;
• In all eminent domain actions, prior to the government's occupancy, a property owner is to be given copies of all appraisals by the government;
• Market value is defined as the highest price the property would bring on the open market (previously it was the most probable price); and
• Property taken in an eminent domain action will automatically revert back to the original property owner upon repayment of the original purchase price, if the property is not used within five years for the original purpose stated by the government. Five years will begin running from the date of entry of final order of condemnation.

9. Why Chapman Law Firm, P.C.?

Michael Chapman has represented governments and private property owners in complex, high liability Eminent Domain cases since 1984. His team at Chapman Law Firm, P.C. consists of Attorneys and Paralegals with extensive experience and knowledge of eminent domain law and proceedings. In the years the firm has been in existence, we have been actively engaged in Eminent Domain litigation, defending public entities and private landowners in all aspects of Eminent Domain, from pre-condemnation planning to trial and appeal. We have two locations, Reno and Las Vegas and are active in all locations throughout the state of Nevada and even California. We strive to combine deep knowledge and expertise with prompt, courteous service in order to provide the highest quality representation possible for our clients. We personally visit the property to make firsthand assessments early on, and discuss all facets of the project in detail to determine overall impact of the case.

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