Challenge Actions in South Carolina Eminent Domain:

Stopping an Unlawful Taking

Not every attempted condemnation in South Carolina is lawful. While condemning authorities possess broad powers of eminent domain, those powers are not unlimited. When a condemning authority exceeds its statutory or constitutional authority, takes property for an improper purpose, or fails to comply with mandatory procedural requirements, a property owner may file what is known as a "challenge action" to halt the condemnation before it proceeds.

What Is a Challenge Action?

A challenge action is a lawsuit filed by a property owner to contest the condemning authority's right or power to take the property through eminent domain. The statutory right to challenge is set forth in South Carolina Code Section 28-2-470.  Unlike the “main” condemnation proceeding—which assumes the taking is lawful and focuses solely on determining the amount of just compensation—a challenge action questions the fundamental legality of the condemnation itself. A challenge action stops the condemnation entirely, preventing the government from acquiring the property, although it may file a new condemnation action after addressing deficiencies.

Grounds for Filing a Challenge Action

South Carolina law recognizes several grounds upon which a property owner may challenge a condemnation:

Ultra Vires Taking: The condemning authority acts beyond its statutory authority. For example, if a statute authorizes a particular entity to condemn property only for specific purposes, and the entity attempts to condemn property for a different purpose, that taking may be ultra vires and therefore unlawful.

Lack of Public Purpose: The Fifth Amendment to the U.S. Constitution and Article I, Section 13 of the South Carolina Constitution require that property may only be taken for a public use. If the primary purpose of the taking is to benefit a private party rather than serve a genuine public purpose, the taking may be unconstitutional.

Procedural Defects: The condemning authority fails to comply with mandatory statutory procedures under the South Carolina Eminent Domain Procedures Act, or fails to obtain necessary authorizations or approvals from governing bodies before initiating the condemnation.

Taking More Property Than Necessary: A condemning authority may only take the minimum amount of property reasonably necessary for the public project. If the authority attempts to take excessive property beyond what the project requires, the owner may challenge that taking as unreasonable and unlawful.

Lack of Project Factor Studies: A condemnor must adequately investigate and study the requisite project factors or criteria to determine the suitability of the property for the intended use or purpose of the project. The factors can be tailored to the project parameters, but include items such as availability of alternative routes or sites, costs, traffic, and safety considerations.  If the condemnor did not weigh, consider, and fully analyze project criteria prior to condemning, then the landowner may challenge the taking as unsupported and an abuse of the condemnor’s discretion.

The Burden of Proof in Challenge Actions

In a challenge action, South Carolina courts generally presume that the condemning authority has acted lawfully and within its powers. The burden falls on the property owner to overcome this presumption by presenting evidence that the taking is unlawful. This can be a high bar, but it is not insurmountable when the owner has a legitimate legal basis for the challenge and skilled legal representation to develop and present the case.

Timing and Procedure for Challenge Actions

A challenge action must be filed as a new, separate lawsuit from the condemnation proceeding itself, and is required by statute to be filed within thirty (30) days of the landowner being served with the Condemnor’s notice of condemnation, which is the pleading that initiates the condemnation proceeding.  If a challenge action is timely filed, then the condemnation proceeding is stayed until the challenge action is resolved.  However, if a challenge action is not filed within the 30-day deadline, then the condemning authority can take possession of the property and the condemnation cannot be challenged or stopped.   

A full assessment of potential grounds for challenging a taking cannot be made until the notice of condemnation is served.  The condemnation notice formally announces the condemnor’s alleged authority and basis for, and scope of, the taking.  In the pleading, the condemnor identifies, among other things, the statute under which it claims authority, the project for which the land is condemned and the public purpose of the same, the nature of the property interest being acquired, and a legal description of the land being taken..

Why Challenge Actions Require Specialized Legal Expertise

Successfully prosecuting a challenge action requires in-depth knowledge of South Carolina eminent domain statutes, constitutional law, and the specific powers and limitations of the condemning authority in question. The legal issues are often complex, involving statutory interpretation, constitutional analysis, and detailed factual investigation into the authority's actions and motivations.

The eminent domain attorneys at Bybee & Tibbals, LLC have extensive experience evaluating potential challenge actions and representing property owners in these specialized proceedings. If you believe a condemning authority is attempting to take your property unlawfully—whether due to lack of authority, improper purpose, procedural violations, or excessive taking—contact our firm immediately for a consultation. Time is critical in challenge actions, and early legal involvement can make the difference between stopping an unlawful taking and losing your property.