Imagine living in a world where the government could just seize your property, kick you out of your home, and then use your land for its own purposes. Wait a minute, that’s eminent domain – we do live in that world…
Throughout history, eminent domain has been the subject of disagreement, a crossroads between government interests and private industry, and the source of repeated injustices against property owners, homeowners, and small business owners.
There are limits to when the government can take your property and how much the government must compensate you for taking your land – in some cases, you can fight eminent domain and make the government pay your attorney fees for dragging you into the fight.
In other cases, you can’t fight the taking of your property – but you can demand just compensation and take the government to court to force them to pay the fair and full value of the property.
How Does Eminent Domain Work in SC?
The procedure for acquiring private property through eminent domain is found in the Eminent Domain Procedure Act, found at SC Code Section 28-2-10.
Condemnation: When the government wants to take your property, they must “condemn” the property.
Appraisal: Before filing the condemnation action, they must also appraise the property to determine what fair compensation would be – a three-person panel is appointed to determine the property value.
Notice: The government must give notice to the property owner that they intend to condemn their property. The Condemnation Notice must include the amount of compensation the government believes is fair.
Taking possession: The government can take possession of your property when:
- You consent to allow them to take possession;
- You agree to the compensation amount and receive payment;
- The government deposits with the clerk of court the amount determined to be just compensation in the Condemnation Notice; or
- The government pays you or deposits with the clerk of court the amount of just compensation determined by the appraisal panel or determined by the judge or jury in the condemnation action.
What is Inverse Condemnation?
What happens when the government takes your property, damages your property, decreases the value of your property, or takes an interest in your property but does not file a condemnation action?
You can sue the government agency in what is called an “inverse condemnation” action – asking the Court to force the government to compensate you for the property taken or the loss in value to your property.
Can I Fight Eminent Domain in SC?
In some cases, we can fight the government and try to stop them from taking your property.
In other cases, you can’t stop them from taking your property, but you can fight to ensure you are fully compensated for the value of your property, including any diminished value to your remaining property.
The Fifth Amendment to the US Constitution says, simply: “…nor shall private property be taken for public use, without just compensation.”
Courts have interpreted this as imposing two requirements on the government:
- If private property is taken, it must be for public use; and
- The government must provide just compensation for the taking.
Can the Government Take My Property and Give It to Businesses or Real Estate Developers?
You would think that’s a resounding “NO.”
The US Constitution says that the government can use the eminent domain power for public use. “For the use of corporations and business interests” seems like it would be exactly the opposite of “public use,” right?
Except it is not, according to the US Supreme Court. The “public use” requirement has been interpreted by our highest court as requiring only that there be some “public benefit” from the use of the land.
Kelo v. City of New London
For example, in Kelo v. City of New London, the US Supreme Court approved the condemnation of both homes and small businesses to make room for “economic development.”
To “revitalize” a struggling neighborhood, the “New London Development Corporation” decided to purchase the properties of 90 homeowners and businesses, threatening them with condemnation if they did not agree.
Moreover, owners who were reluctant to sell were subjected to considerable harassment, such as late night phone calls, dumping of waste on their property, and locking out tenants during cold winter weather.
In the end, only seven homeowners held out, including a woman who was in her 80s and had lived in the same home her entire life, and another family who had been forced from their previous home in another “urban renewal project.”
What was intended to replace the homes? New housing, office buildings, and other facilities that were intended to support a new Pfizer headquarters that Pfizer indicated they would build nearby. The entire plan was organized based on Pfizer’s requirements.
More than a decade after the US Supreme Court approved the condemnation of the area’s residents’ homes because there was a “public benefit” to the proposed development plan, the area remained undeveloped, now a wasteland filled with empty, abandoned lots and feral cats…
What is Public Use in South Carolina?
In 2006, the year after the Kelo decision, SC voters approved a state constitutional amendment that was designed to provide SC citizens more protections that the US Supreme Court was willing to give under the federal constitution.
Article I, Section 13 of the SC Constitution now says:
(A) Except as otherwise provided in this Constitution, private property shall not be taken for private use without the consent of the owner, nor for public use without just compensation being first made for the property. Private property must not be condemned by eminent domain for any purpose or benefit including, but not limited to, the purpose or benefit of economic development, unless the condemnation is for public use.
(B) For the limited purpose of the remedy of blight, the General Assembly may provide by law that private property constituting a danger to the safety and health of the community by reason of lack of ventilation, light, and sanitary facilities, dilapidation, deleterious land use, or any combination of these factors may be condemned by eminent domain without the consent of the owner and put to a public use or private use if just compensation is first made for the property. (1970 (56) 2684; 1971 (57) 315; 2007 Act No. 15.)
For the moment, government agencies in South Carolina appear to be complying with the “spirit” of the Amendment – the clear purpose of the Amendment, passed in response to the Kelo decision, is to stop the government from taking private property to give to private corporations.
Note, however, that the language of the Amendment doesn’t seem to accomplish anything – it says that “private property must not be condemned by eminent domain for… economic development, unless the condemnation is for public use.” Which is exactly what the US Supreme Court said allows the government to seize private property and give it to corporations if there is a “public benefit.”
The SC Constitution also still permits the government to seize private land and turn it over to private corporations in cases of “blight.”
Diminution in Value is Compensable in South Carolina
Just compensation may involve more than just the market value of the piece of land the government is taking.
When the government’s plans for redevelopment also will cause a reduction in the value of the landowner’s remaining property, the government must also compensate the landowner for that diminution in value.
Although SC law expressly provides for compensation for diminution in value, the SC Dept. of Transportation (SCDOT) recently attempted to take a portion of a Myrtle Beach landowner’s property and block their access to the 17 bypass without compensating for the reduction in value of the remaining land.
SCDOT’s own appraiser submitted an estimate of $72,000 for the land the SCDOT was taking and $445,000 for the reduction in value of the remaining land – because anyone accessing the property would now have to travel as much as 2.24 miles further than they would have before the redevelopment.
The SC Supreme Court found that the SCDOT was responsible for paying the diminished value of the remaining property, reversing the lower court’s decisions.
Eminent Domain Attorneys in Myrtle Beach, SC
If the government is trying to take your property through condemnation, you need to know what your options are. Your SC eminent domain lawyer at Coastal Law can help you to determine whether it is possible to fight the condemnation, what the full value of the property taken is, and whether the government owes additional compensation for the reduced value of any remaining property.
If you’ve received a Condemnation Notice or if you are attempting to negotiate with a government agency over a proposed condemnation of your property, call Coastal Law now at (843) 488-5000 or contact us through email for a free consultation today.