“Eminent domain”, also called “condemnation”, is the power of local, state or federal government to take privately owned property for “public use” as long as the government pays “just compensation” to the owner. The government can exercise its power of eminent domain even if the owner does not want to sell his or her property.

                The Fifth Amendment of the United States Constitution and Article I, Section 19 of the California Constitution allow private property to be taken by eminent domain only for a “public use”.

                Examples of public uses for which the government might use its power of eminent domain traditionally include such things as roads, schools, libraries, fire and police stations.

                The conflict arises because the term “public use” has been interpreted very broadly by the Courts. A project does not necessarily need to be “open to the public” to qualify as a public use. Usually only a “public benefit” is required. Eliminating run-down areas of towns and cities through redevelopment projects is an example that has been held up by the Courts to constitute a public benefit which satisfies the “public use” requirement of both the State and Federal Constitutions. Even more disturbing is that recent cases have sanctioned the use of eminent domain solely for the purpose of increasing tax revenues. And shockingly enough, that very same property may be ever be open to the general public!

                Although most government agencies have the power of eminent domain, occasionally a successful challenge to the government’s right to take a property for a particular project can be made. It is important to note, however, that such challenges are the exception, not the rule, and in most cases only result in a delay, not a prevention of the right to take.

                The most common challenges to the “right to take” include the failure of the government to follow the appropriate procedures regarding eminent domain. Circumstances which allow a successful challenge to the right to take are extremely rare. The property owner’s most likely remedy will be gaining compensation for the taking, and not actually challenging the government’s right to take.

                California law provides that the eminent domain proceeding may be dismissed when a property owner successfully challenges the government’s right to take his or her property.

                The most likely scenario is that the Court will rule that the government correct any procedural mistakes and then proceed with the taking. And even if the action is dismissed, the government agency can start the entire process all over again!

                It should be noted that no matter what the outcome, a property owner will not be liable for the government’s costs when challenging a right to take.

                Next month we will explore the Eminent Domain Process.