When the Ohio Department of Transportation (ODOT) undertakes a highway or infrastructure project, it often requires land that is privately owned, which may include a portion of a condominium or homeowners’ association’s property. In such cases, the state may exercise its power of eminent domain to acquire private property for public use, provided that just compensation is paid to the property owner.

What Is Eminent Domain?

Eminent domain is a right granted under the Fifth Amendment of the U.S. Constitution and mirrored within the Ohio Constitution. It allows government entities to take private property for public purposes, such as roads, schools, parks, or utilities. This power, however, comes with the obligation to fairly compensate the property owner. Fair Market Value of the property to be taken through eminent domain is the standard which is used for fair compensation and that compensation is determined through an appraisal. Fair Market Value is the amount a purchaser would pay for the property based on recent sales in the area and other information related to the location, use, and adjacent properties, among other factors.

What is the ODOT Acquisition Process?

ODOT’s use of eminent domain typically follows a structured process:

1. Planning and Public Involvement Every project should begin with planning and public meetings. These sessions are designed to inform the community, gather feedback, and ensure transparency of the project and the process for all property owners involved.
2. Property Identification and Evaluation Once a project is selected, ODOT will hire surveyors, title agents, and appraisers to assess the properties affected. This includes determining ownership, evaluating the land, and estimating fair market value through an appraiser.
3. Negotiation ODOT attempts to acquire the necessary property through voluntary negotiations. Property owners are presented with an offer based on the appraised value. Property owners are not required to accept the appraised value offered by ODOT, and if a property owner disagrees with ODOT’s proposed valuation the property owner will need to acquire its own appraisal to show a different value. The appraisals will need to take existing easements, right-of-way areas, and other factors into consideration when determining the value of the land to be taken. In many instances, the cost and time of hiring an appraiser is not worth the potential difference in the land value offered from ODOT, so determining whether an appraisal is necessary to rebut the offer from ODOT must be determined on a case-by-case basis.
4. Legal Action If an agreement cannot be reached, ODOT may initiate legal proceedings under Ohio Revised Code Chapter 163. This involves filing a lawsuit and allowing a jury to determine the compensation due to the property owner. If the lawsuit is filed, the property owner will need an appraisal to prove that the fair market value of the land is different from the amount proposed by ODOT.

Protecting Property Owners' Rights

While the government has the authority to take land for public use, property owners have rights too. They can:

• Challenge the necessity of the taking,
• Dispute the amount of compensation offered,
• Be represented by legal counsel throughout the process.

Summary 

Eminent domain is a tool that enables the development of public infrastructure; however, it must be exercised with fairness, transparency, and respect for individual property rights, which often is not the case. If your community has been approached by ODOT or another entity seeking a taking of association real property, contact one of the attorneys at Williams & Strohm, LLC, at (614) 228-0207.