Reasons for Eminent Domain: Justification of Necessity

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.

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.

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 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.

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.

How the Necessity of Eminent Domain is Determined

A government entity's legislature may determine:

1. The necessity of taking property for public use, and
2. The amount of property that a condemning authority can take

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

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:

California — 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."

Illinois — 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:

• Any benefit to the landowner
• Any unsafe or illegal conditions of the property
• The effect of such conditions on the property's market value
• The reasonable cost of improving such a property

New York — When the government wants to seize property, it must hold a public hearing at a "reasonably proximate" location to the property. The agency must publish a notice of the hearing in at least five successive issues of "an official daily newspaper" in the vicinity.

Remember that private developers are not only concerned with valuation and just compensation. If their property gets taken or limited in some way, they might want to challenge the government's power altogether.

Government Condemnation Power

A local government may deem a property a hazard to the public. For example, it may pose a health or safety risk. Here, the government may condemn the property as unfit for human occupancy. This can happen following formal inspection and assessment. Usually, this happens by citation of violations involving:

1. Local ordinances
2. Building codes
3. Federal public safety regulations

During condemnation proceedings, a landowner is generally not entitled to compensation. This is true even though deprivation of property rights has happened. Landowners may challenge the condemnation of their property. This can happen through legal processes that vary by state. State laws generally require ample notice to real property owners and allow hearings if anyone objects. Property owners may ultimately sue municipalities through inverse condemnation actions in court.

'Excess Condemnation' Actions

An excess condemnation action is a formal court action objecting to the taking of property. It alleges that a taking is not strictly needed for public use — or for taking more property than needed for public use. Such "excessive" takings often stoke controversy. Governments can make extra revenue by dividing excess property into parcels and selling them at auction. This raises questions about the initial justification for the taking.

Facing Eminent Domain? Contact an Attorney

If the government wants to seize your property through eminent domain, it must abide by the United States Constitution. It must clearly state the justification of necessity for the taking. Not all takings can be justified, but it's up to the private property owner to object.

Learn more about eminent domain, justification of necessity, and more, by contacting an experienced eminent domain attorney.