{"id":369160,"date":"2016-04-04T10:47:15","date_gmt":"2016-04-04T15:47:15","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-law\/realestate\/land-use-laws\/eminent-domain-justification-or-necessity-requirement.html"},"modified":"2024-06-14T11:28:25","modified_gmt":"2024-06-14T16:28:25","slug":"eminent-domain-justification-or-necessity-requirement","status":"publish","type":"page","link":"https:\/\/www.findlaw.com\/realestate\/land-use-laws\/eminent-domain-justification-or-necessity-requirement.html","title":{"rendered":"Reasons for Eminent Domain: Justification of Necessity"},"content":{"rendered":"\n
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Reasons for Eminent Domain: Justification of Necessity<\/h1>\n
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\n By Robert Rafii, Esq.<\/a> | Legally reviewed by Robert Rafii, Esq.<\/a>\n | Last updated\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

Eminent domain is the government’s power to take property for the general public good. But the law limits regulatory taking power in several ways. The government must meet other requirements besides providing private owners with just compensation. In particular, there is a public use requirement that the government must justify.<\/p>\r\n

Suppose a city wants to build an overpass to help relieve traffic congestion. Because there is traffic in its rapidly growing suburbs, the community has supported the project for years. The city has started the bidding process for contractors. But a parcel of private property still needs clearing before redevelopment. But the owner of the private land doesn’t want to move. They’re challenging whether the city has given adequate justification for invoking eminent domain<\/a>.<\/p>\r\n

Reasons for the power of eminent domain include public projects such as highways and bridges. State and federal governments make use of eminent domain for economic development. A court would probably greenlight the city’s taking<\/a> of the private property for the highway overpass. The government will have to pay the property owner the fair market value of their real estate.<\/p>\r\n

But when a government wants to seize property through eminent domain law, it must justify the taking’s necessity. Below is a discussion of how this gets determined and how governments may use their authority to condemn private properties.<\/p>\r\n

How the Necessity of Eminent Domain is Determined<\/b><\/h2>\r\n

A government entity’s legislature may determine:<\/p>\r\n

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  1. The necessity of taking property for public use<\/a>, and<\/li>\r\n
  2. The amount of property that a condemning authority can take<\/li>\r\n<\/ol>\r\n

    But the law mandates what circumstances justify the action. Federal, state, and local governments must all follow the "Takings Clause<\/a>" of the Fifth Amendment of the U.S. Constitution. The U.S. Supreme Court has said taking requires a justified "public use."<\/p>\r\n

    When the government takes property, it’s not enough that it pays fair compensation for the value of the property. State laws establish processes for determining whether a planned taking is necessary in the first place. They often include public hearings and opportunities to challenge the justification. The following is a sample of how states determine the necessity of an eminent domain case:<\/p>\r\n

    California<\/a> \u2014 Government agencies requesting the taking must adopt a formal resolution of necessity. This must be at a public hearing before proceeding with an eminent domain action. The resolution must prove that the taking is for a public project. It must be "located in such a manner as to offer the greatest public benefit with the least private detriment."<\/p>\r\n

    Illinois<\/a> \u2014 Agencies requesting land through eminent domain must prove (and may submit evidence showing) that "the acquisition of the property is necessary for a public purpose." Any party to such an action may submit evidence. Evidence includes:<\/p>\r\n