Reasons for Eminent Domain: Justification of Necessity

City Hall wants to build an overpass to help relieve traffic congestion in its rapidly growing suburbs, something the community has overwhelmingly supported for years. The city has started the bidding process for contractors, but a parcel of private property still needs to be cleared. The landowner, however, doesn't want to move and is challenging whether the city has provided adequate justification for invoking eminent domain.

Reasons for eminent domain include public projects such as highways and bridges, so in all likelihood the court would green-light the city's taking of the private property for the highway overpass.

When a government wants to seize property through eminent domain, justification of the taking's necessity must be provided. Below is a discussion of how this is determined and how governments may use their authority to condemn certain private properties.

How the Necessity of Eminent Domain is Determined

The legislature (whether it's city council, county supervisors, state representatives, or members of the U.S. Congress) has the power to determine the necessity of taking property for public use, as well as the amount of property that can be taken. Most takings must comport with legislative language that mandates under what circumstances such an action is justified or necessary. However, federal, state, and local governments all must comply with the "Takings Clause" of the Fifth Amendment, which requires takings to be for "public use."

State laws establishing processes for determining whether a planned taking is necessary often include public hearings and opportunities to challenge their stated justification. The following is a sample of how states determine the necessity of an eminent domain action:

  • California - Government agencies requesting the taking must adopt a formal resolution of necessity (at a public hearing) before proceeding with an eminent domain action. The resolution must prove that the taking is for a public project that is "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 of any benefit to the landowner, any unsafe or illegal conditions of the property, the effect of such conditions on the property's market value, and 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 location "reasonably proximate" to the property to be acquired. The agency must publish a notice of the hearing in at least five successive issues of "an official daily newspaper" in the vicinity.

Government Condemnation Power

If a local government deems certain property to be a hazard to the public, e.g. a health or safety risk, it may condemn the property as unfit for human occupancy following formal inspection and assessment. Usually this is accomplished by citation of violations involving local ordinances, building codes, or federal public safety regulations. During the time between condemnation and bringing the property back into conformity with relevant laws, a landowner is generally not entitled to compensation, even though a deprivation of property rights has occurred.

Landowners also may challenge the condemnation of their property through legal processes that vary by state. State laws generally require ample notice to property owners and provide for a hearing if the property owner objects.

"Excess Condemnation" Actions

A formal court action objecting to the taking of property that is not strictly needed for public use -- or for taking more property than needed for public use -- is generally referred to as an action for "excess condemnation." Such "excessive" takings often stoke controversy, since governments are able to make extra revenue by dividing excess property into parcels and selling them at auction -- thereby raising questions about the initial justification for the taking.

Facing Eminent Domain? Justification is Required: Contact an Attorney

If the government wants to seize your property through eminent domain, justification of necessity for the taking must be clearly stated. Not all takings can be justified, however, but it's up to the private property owner to raise any objections. Learn more about eminent domain, justification of necessity, and more, by getting in touch with an experienced eminent domain attorney near you.

Next Steps

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