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A close-up look at eminent domain

Legal experts discuss eminent domain, why it’s necessary and the limitations of the constitutionally protected government right
Jackson Township said it intends to acquire 132 acres from Evans City through the legal procedure known as eminent domain. The land on Lindsay Road is in Jackson Township but is owned by Evans City. Paula Grubbs/Butler Eagle
Jackson Township wants Evans City land for park

On May 24, Jackson Township filed paperwork in Butler County Court of Common Pleas to begin the process to acquire 132 acres from Evans City through the legal procedure known as eminent domain.

The land in question is on Lindsay Road in Jackson Township, but is owned by Evans City. Jackson officials want to turn the area into a public park.

Officials from Evans City said the borough plans to fight the decision and challenge Jackson Township’s monetary offer of $1.2 million for the land, which includes both a dam and a lake.

This is not the first time eminent domain has been used in Butler County.

In 2022, Breakneck Creek Regional Authority attempted to acquire a section of an Adams Township landowner’s property, but it ultimately fell through after negotiations with Cranberry Township ended.

In 2017, Mars Area School District acquired 15.35 acres from MHY Family Services through eminent domain.

As another case of eminent domain gets underway in the county, Jason Kelly, of Pittsburgh, an attorney with Maiello, Brungo & Maiello LLP; and Andrew M. Menchyk Jr., of Butler, an attorney with Stepanian & Menchyk LLP, provided insight on eminent domain and the limits of the government’s power in acquiring land from property owners.

Jason Kelly, of Pittsburgh, is an attorney with Maiello, Brungo & Maiello, LLP. Submitted photo
Andrew M. Menchyk Jr., of Butler, is an attorney with Stepanian & Menchyk LLP.
What is eminent domain?

Eminent domain — as defined by Chapter 2; Section 202 of Title 26 of Pennsylvania law — is “the power of the commonwealth to take private property for public use in return for just compensation.”

“It’s the legal means by which a governmental agency that is cloaked with the authority to exercise eminent domain can acquire private property for a public purpose,” Menchyk said.

Eminent domain is a recognized power of the federal or state government to take property as long as it follows the criteria of using the land for public use and it pays “fair and just compensation.”

“Eminent domain is the natural power of the federal government,” Kelly said. “It’s something that is inherent in its right as part of being the government.”

The granted power which, according to Kelly, comes from Old English common law, is embedded into the U.S. Constitution as an inherent right, with limitations.

“When they passed the Constitution, if you look at the Fifth Amendment, it just assumes the government has that power and then restricts it,” Kelly said. “The Constitution says if you’re going to use the power that you naturally have, you’re going to have to do it for a public purpose, and it’s going to have to be with payment of just compensation.”

When can the government use eminent domain?

The government only can use eminent domain when the land would be used specifically for public purposes, according to both attorneys.

“It has to be in accordance with careful planning and design,” Kelly said. “It can’t just be a whimsical idea that the government comes up with and it can’t be with the intent to be punitive on an individual landowner.”

As for what constitutes “public use,” Kelly said federal and state courts still are trying to define what that means. As an example, Kelly cited the 2005 Supreme Court case “Kelo v. City of New London” in which the court ruled 5-4 that the use of eminent domain by one private owner on another private owner to further economic development does not violate the Fifth Amendment.

“The court decided that land for public purposes can be used to give to private enterprise,” Kelly said.

In 2006, Pennsylvania responded to the ruling by passing the Property Rights Protection Act, which would limit the level of private enterprise on government-acquired land.

“The act prohibits the use of eminent domain to take private property for use of private enterprise,” Kelly said. “That really tightened what public use could be in Pennsylvania.”

What is the process?

Eminent domain typically is used by a body of government against an individual, not between two municipalities, but Kelly said the legal procedure in either case mostly remains the same.

“The process is going to be the same no matter who the parties are,” Kelly said. “Every one of these eminent domain procedures has a ‘condemner,’ which is the government entity, and a ‘condemned,’ which is the person or group whose property is being taken.”

In this case, Jackson would be considered the condemner and would file a “declaration of taking” in court for the land. Evans City, the condemned, would have the right to file for a preliminary objection, which is a legal way for Evans City to ask the court for a ruling in its favor.

Currently, Evans City has 30 days from when they are served with the declaration of taking to decide how they want to proceed.

Kelly said negotiations for the property can occur even though the eminent domain process has begun.

“Both sides can negotiate behind the scenes,” Kelly said. “They can agree to a price and sell the property and all the legal proceedings can go away.”

Menchyk said eminent domain can sometimes be used to obtain specific property rights without taking the whole of the property.

“For instance, a condemner could condemn a right of way without underlying the ownership of the property,” he said. “A condemner can condemn the property without taking the mineral rights to the property.”

In Jackson’s public news release, the township said it would not pursue “ongoing royalties from the borough’s gas well and subsurface rights of the property,” meaning Evans City would be able to continue to own those rights as an asset and revenue source.

Room for negotiations, legal fights

Kelly said Evans City has several legal arguments and avenues it can pursue.

The borough can file a preliminary objection to get the acquisition thrown out of court. Kelly said Evans City can make the legal argument that Jackson does not have the legal power to claim the land because the land is already owned by a public entity, thus it already serves a public purpose.

“The basis of the objection could be the township lacks the power to take the property of another public entity,” he said.

Evans City also can fight on the basis of what it deems is “just compensation.”

“They can fight the evaluation,” Kelly said. “They don’t have to fight one issue; they can say that (Jackson Township) is not paying them enough.”

Several members of Evans City leadership have said the borough would be willing to sell the land but are concerned about the amount of money offered.

According to a news release from Jackson, the municipality has offered $1,204,000 for the land, based on the appraised market value of the property.

If Evans City contests that value, it can request a revaluation of the property, Kelly said. The revaluation would be conducted by a board of viewers, which is made of three individuals, usually an attorney, real estate brokers and sometimes engineers who provide expert testimony on how the land should be valued.

If either party does not agree with the assessment of the board of viewers, they can challenge it in court.

Why does eminent domain exist? Does this infringe on American rights?

Kelly said the purpose of eminent domain, which has historic ties to the Magna Carta and English common law, is to protect the public.

“One individual, and the ownership of certain property, can’t block the fulfillment of a public good,” he said.

Kelly said he doesn’t believe eminent domain should be classified as legal theft by the government, but the procedure could be “fraught with the potential for abuse.”

“It costs you to defend,” Kelly said, and “very often you’re also not going to be paid for certain things, like sentimental value.”

Menchyk said eminent domain is often a last resort and can be used when an agreement on both sides cannot be reached.

“The justification is that sometimes property is needed for public purpose if private negotiations fails,” Menchyk said.

“It’s not very popular with the public,” he said. “In most cases, the governmental entity that’s interested in acquiring someone’s property will work with that property owner and negotiate with the property owner before resorting to the exercise of eminent domain.”

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