Attorney outlines Kansas eminent‑domain two‑step process and valuation issues for utilities

Chris Berger, an attorney with Stevenson Brand LLC in Lawrence, described Kansas’s eminent‑domain procedure and valuation practices to the Committee on Energy, Utilities and Telecommunications on Jan. 27, explaining how the state’s two‑step process works and highlighting common areas of dispute.

Berger said Kansas uses an administrative inquest followed by a possible district‑court appeal, a system he characterized as "a lovely lovely balance" between the efficiency of exercising eminent domain and safeguards for property owners. He explained that the first step is a panel of three locally selected members who determine the award in the administrative process; either side may appeal to district court for a full trial with appraisers and a jury.

Berger outlined key legal and procedural points that commonly arise in utility condemnations: the difference between a total (fee simple) taking and a partial easement taking; how the condemning authority’s drafted rights affect valuation; limitations on what the inquest award may change about local assessments or other consequences; and the practical constraints created by a shrinking pool of experienced appraisers and the time required to produce credible appraisals.

On partial takings, Berger said an easement is limited to the rights expressly taken and that careful drafting by condemning authorities can narrow the scope and thus reduce compensation. He told lawmakers that when condemning authorities draft broadly, the easement can functionally become a total taking and increase the award.

In a committee exchange, Representative Carmichael asked whether Kansas law allows any extra or ‘‘heritage’’ multiplier for owners compelled to sell. Berger said Kansas does not have a statutory heritage premium and that the law requires valuation based on market concepts similar to those used by willing buyers and sellers; however, he noted judges and panels consider a range of evidence when determining the after‑value. On whether the legislature could require higher statutory payments, Berger said lawmakers can pass legislation but flagged potential constitutional considerations around the Fifth Amendment’s just‑compensation rule.

Berger also summarized historical points and practical timelines: he said the administrative inquest typically proceeds within about a 60‑day window from petition to payment, appraisals can take weeks each, and condemnation projects may involve dozens or more tracts, creating capacity and timing challenges for appraisal and construction schedules.

Ending: Berger offered to answer follow‑up questions and to provide further detail to staff; the committee asked several clarifying questions but took no formal action.