A Public Use, but is it Necessary?

The Fifth Amendment to the U.S. Constitution states that private property shall not be taken for public use without just compensation. When challenging a government condemnation, however, there is more to litigate than just whether the taking is for a public use and whether the compensation is just. The law has evolved corollaries to the public use requirement, namely that the taking is required by the public interest, and the property taken is necessary to fulfill that purpose. This last matter - the public necessity test - is beginning to look like fruitful ground to challenge eminent domain actions.

Traditionally, the issue of public necessity has not been heavily litigated in the courts, which have been reluctant to replace another government body's decision-making with their own. But since the Supreme Court's broad definition of what constitutes a public use and a project in the public interest in Kelo v. City of New London, property owners challenging a government taking have been looking to the necessity test as a stand against the taking. While a court may uphold the idea behind a government project, how much property does the government need to take to fulfill its mission, and which property in particular?

A California Court of Appeals addressed itself to this question last year, in the case of City of San Luis Obispo v. Hanson. While the City project in this case (a road realignment) clearly benefited a private entity (Costco), the court also found that the city had debated the issue of the road realignment for 20 years and there was plenty of evidence to support that the road was needed by the public, without regard to the Costco development. Even though the landowner lost on appeal, it is significant that this issue played a major role in the appeal. Look for more eminent domain challenges in the future to raise the public necessity issue and to demand proof by the taking authority that its actions are necessary to accomplish its stated public purpose. For advice and representation in a condemnation matter in Southern California, contact the Los Angeles eminent domain lawyers at Fisher & Talwar at (213) 891-0777.