Can Eminent Domain Be Challenged?

The state and federal government do have the inherent right to exercise eminent domain. This inherent right is not expressly given in either the United States Constitution or the North Carolina Constitution. However, those documents do act to restrict the government’s right to exercise eminent domain. They are restricted by stipulating two requirements. First, the government must only take property for a public use. Second, the government may only take the property if just compensation is given to the property owner. In short, it is possible, but not easy.

            The government is only allowed to take property for a legitimate public use or purpose. The government must also justify their taking. If they cannot, then the taking is likely a constitutional violation. The United States Supreme Court has recently interpreted public use broadly. In so doing, the Court created the principle that “blighted” areas may be taken to engender economic growth. (see Kelo v. New London) In North Carolina, there has been recent legislation that serves to quell the government’s ability to condemn properties that are deemed “blighted.” Indeed, the Urban Redevelopment Law of North Carolina serves to an owners’ interest in such areas. However, you should have an eminent attorney look at your case to see if the government can be challenged on this issue.

            Another way to challenge an eminent domain case is to challenge the entity’s authority to take the property. The state and federal government have the inherent authority to exercise eminent domain. However, local governments and municipalities do not have the inherent authority. It must be given to them via statute. This same principle applies to government agencies. Those agencies must also be given the express right to exercise eminent domain. However, in North Carolina, the General Statutes in Chapter 40A does give the right of eminent domain to local governments, municipalities, and some private entities.

            However, the entities mentioned above may only exercise eminent domain for purposes stated in the statute. Therefore, you should consult with an eminent domain attorney to see if the taking is within the bounds of the law.

Our firm focuses on three practice areas: Disability, Personal Injury, and Eminent Domain. Every practice area has attorneys who have expertise in their respective area of practice. 

Chad Brown is a North Carolina Board Certified Social Security disability law specialist. Mr. Brown helps Social Security disability claimants at all stages of the disability process. He also works with people that have Long Term Disability denials and with people that are injured by drugs and defective medical products.

Your Questions Answered

Why is Eminent Domain Legal?

The legality of eminent domain goes all the way back to the Roman Empire. However, American law has recognized the right of eminent domain as an inherent power that precedes any government statute and even the Constitution. The recognition that the courts have given...

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Who Can Exercise Eminent Domain?

Generally, any sovereign government may exercise the inherent right of eminent domain. Eminent domain is an inherent right that is deemed to exist automatically within the borders of a sovereign government. A government is...

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What Is the Purpose of Eminent Domain?

Eminent domain is the inherent right of the government to take private property that is owned by a private citizen and convert it to public use. The primary purpose for eminent domain is the “public use.” Typically, this entails taking property, usually land, in order...

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