Nebraska's Eminent Domain Laws and Property Rights

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

• Who Can Exercise Eminent Domain Powers?

  Virtually all public bodies in Nebraska have the power to acquire property for public use, granted by the Nebraska legislature. This includes cities and counties, the State itself, Natural Resource Districts and Power Districts, to name a few. Additionally, a number of private entities have been granted the power, such as railroads and pipelines

• What Are the Legal Requirements or Pre-Requisites for Exercising the Power?

  The condemning agency must obtain all needed approvals prior to filing for condemnation. In most cases a public informational hearing is required after notice to all affected property owners, and in most cases the condemning agency must obtain an appraisal of the property before commencing negotiations for the property interests to be acquired. The condemnor must also contact the owner before condemning and must make an offer of compensation based on the appraisal and attempt to convince the owner to accept the offer. The condemning agency is to separately contact each owner of the property interest that will be acquired, but this is often overlooked.
  
  If negotiations are unsuccessful, the agency must file a condemnation proceeding in county court, asking for a board of three appraisers to make the initial determination of the amount of compensation. The board has no authority other than to decide the amount of compensation. Once the board enters an award of compensation and the award is paid into court, the condemnor may take possession.

• What Limitations or Defenses Exist?

  There are no defenses or limitations in County Court to the condemnation action. Indeed, if the condemning agency's Petition states a public taking, the County Judge has no authority other than to appoint the three appraisers and to to schedule the compensation hearing.
  
  If an appeal of the County Court award is taken to District Court, then the owner has numerous potential challenges, although some of them have little likelihood of being successful. The good faith negotiation process can be challenged, along with the question of whether the taking is for a public use, and whether the extent of the taking is needed. Of course, the procedural steps that are required to be followed by the authority can also be challenged.

• What Constitutes a Public Purpose?

  The Constitutions of the United States and the State of Nebraska speak to just compensation and public use. Public use has become almost synonymous with public purpose and even public good. Nebraska passed legislation following the infamous Kelo case to prohibit acquiring private property for economic development purposes, although the difference between economic development and redevelopment of blighted and substandard areas is often difficult to define.
  
  In general, public purpose includes any use by the condemning agency that is consistent with the purposes for which the agency is empowered to act.

• How is Just Compensation Detemined?

  Just Compensation is based on loss of property value. Each and every item of annoyance and inconvenience is to be considered, to the extent that, when considered together, they impact the fair market value of the property. However, court decisions have carved out a number of items that cannot be considered, most of which fall under the umbrella of the exercise of the government’s “police power”. In most cases the loss of value is a matter of real estate appraisals. If the owner and the agency cannot agree, the determination is made first by a board of three appraisers in County Court, and by a jury of twelve residents of the county if it is appealed to the District Court.

• How is Fair Market Value Determined?

  The definition of fair market value under Nebraska law is “the price that someone ready to sell, but not required to do so, would be willing to accept in payment for the property, and that someone ready to buy, but not required to do so, would be willing to pay for the property.” NJI2d 13.02. Value is determined as of the date of the taking.

• What About Recovering Damages to Remaining Property?

  The property owner is entitled to receive the loss of value of the property taken and any decrease in the value of the remaining property caused by the taking.

• Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

  Unfortunately, the property owner does not generally recover attorney and expert fees or costs in Nebraska. If the matter is settled before court action, owners must pay their own fees. Fees are allowed if the matter goes to court and is either dismissed for lack of good faith negotiations or for lack of authority to condemn or for lack of public purpose or need. If it goes to District court on appeal, in certain situations the judge is required to determine a reasonable amount of attorney and expert fees to be paid to the owner by the agency. In many cases, the litigation court costs are paid by the agency.