CONDEMNATION:  Constitutional attack on delegation authority unsuccessful
DATE RENDERED:  7/14/2006

The Department of Highways (“Department”) filed a petition to condemn property owned by the Rabourns to relocate a highway. The commissioners found the fair value of that property to be $147,500. The Rabourns filed an answer challenging the Department’s right to take and the constitutionally of KRS 177.081. Although the Rabourns presented the testimony of an expert who stated that the Department’s policies were arbitrary and an abuse of discretion, the Department’s experts convinced the court that there was no abuse of discretion or bad faith. The court granted the petition to condemn the property and valued the parcels as recommended by the commissioners. The Rabourns appealed.

On appeal the Rabourns argued that KRS 177.081 violates the separation of powers doctrine of the Kentucky Constitution because it improperly delegates legislative authority to condemn land without sufficient standards to control the Department’s discretion. The court disagreed, holding that the right of eminent domain is not inherently legislative and that the legislature may delegate the authority to exercise eminent domain powers subject to the legislature’s discretion to appropriate funds for a project. The court stated that the legislature’s delegation of eminent domain power is limited only by the constitutional requirements that there must be public use, that the condemnee must receive just compensation and that the exercise of authority is not arbitrary.

The Rabourns argued that the statute infringes on the authority of the judiciary because it states that the Department’s finding of public use and necessity shall not be disturbed absent fraud, bad faith or abuse of discretion. The court disagreed, stating that because the presumption of public use is rebuttable, it does not interfere with the courts’ ability to make factual findings.

The Rabourns also argued that the court erred in finding that the Department had negotiated with the Rabourns in good faith prior to bringing the condemnation action, which is required under Kentucky law. The Rabourns pointed out that the Department’s policy was to make only one offer prior to bringing the petition and that the Department’s offer to them was less than one-fourth of the value of the property as found by the commissioners. Although the court was concerned with the Department’s policy of making only one offer, it held that the Rabourns had not shown that there had been a gross abuse or manifest fraud, especially since the Rabourns made no effort to negotiate with the Department.  Digested by Sam Hinkle.

Please note: I reserve the right to delete comments that are inappropriate, offensive or off-topic.

Leave a Reply

Your email address will not be published.