July 27, 2005
“PUBLIC USE” AND EMINENT DOMAIN
By: Kevin E. McCarthy, Principal Analyst
You asked how other states define the term “public use” in their statutory or constitutional eminent domain provisions. We did not attempt to find all eminent domain statutes, but rather those that specifically refer to “public use.”
Every state but one has constitutional provisions barring the taking of private property for public use without just compensation. While North Carolina' constitution has no eminent domain provision, the state's Supreme Court has held that the public use requirement is an inherent part of the constitution's Due Process Clause, art I, § 19 (see N. C. State Highway Com. v. Farm Equip. Co., 281 N.C. 459, 468 (1972)).
In most states, the term “public use” (or related terms) is not defined by the constitution, although there is extensive case law on the meaning of these terms. Several constitutions list public uses for which public entities can exercise their eminent domain powers. These generally include governmental buildings, schools, and highways. Several constitutions also permit condemnation of property by public or private parties to erect facilities in connection with the development of natural resources. For example, Indiana's constitution allows the legislature to pass laws authorizing the condemnation of real estate needed to build or maintain drains, ditches and levees for agricultural, mining, and sanitary purposes. Constitutions in Arizona, Louisiana, Mississippi, Missouri, Oklahoma, and Washington specify that the issue as to whether a use is public is for the courts to decide, independent of the legislature's determination that a use is public.
In most states, there is not a single statute with a definition of public uses for which eminent domain may be exercised. Instead, there is usually a set of statutes allowing specific entities to use eminent domain for specific purposes. This memo provides examples of statutes where such purposes are explicitly identified as “public uses,” e.g., the redevelopment of blighted areas in California. As noted in OLR memo 2005-R 0578, Connecticut has over 80 statutes conferring eminent domain authority on various entities. Other entities have been granted eminent domain authority by special act.
In most cases, just compensation must be paid before the property is taken. However, a number of states allow certain condemnors to take the property before arriving at the amount of compensation. Connecticut and several other states permit such “quick takes” in connection with transportation projects.
STATES CONSTITUTIONAL OR STATUTORY DEFINITIONS OF “PUBLIC USE”
Alaska allows the exercise of eminent domain for specified public uses, including (1) public buildings and grounds; (2) utilities; (3) roads and various other types of infrastructure for the public or in connection with mining; and (4) private roads leading from highways to residences, mines, or farms; as well as all other public uses authorized by the legislature (Ala. Rev. Stat. § 9-55-240).
Article 2, section 17 of the constitution specifies that if an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use is actually public is a judicial question to be determined without regard to any legislative assertion that the use is public.
Ariz. Rev. Stat. § 12-1111 specifies the public uses that can be the basis of eminent domain, which are very similar to those described in Alaska's law.
Ariz. Rev. Stat. § 9-441.02 allows municipalities to do all things necessary or convenient to carry out their statutory powers, except acquire real property by eminent domain unless a property owner voluntarily offers his property for sale. However, this provision does not affect the ability of a municipality to acquire property by eminent domain in slum or blighted areas.
§ 33037 of the Health and Safety Code declares that the redevelopment of blighted areas and the provisions for appropriate continuing land use and construction policies in them constitute public uses and purposes for which public money may be spent and private property acquired.
Fla. Stat. § 166.411 specifies the uses for which municipalities can use eminent domain. These include public buildings, various forms of infrastructure, utility facilities, and the abatement of nuisances. In addition, Fla. Stat. § 163.375 allows municipalities, counties, and redevelopment agencies to condemn property in connection with community redevelopment and related activities. Similarly, Fla. Stat. § 163.335 states that the acquisition or clearance, of slum or blighted property and its disposition subject to use restrictions are public uses for which municipalities may use their eminent domain and police powers.
Article 1, § 14 of the constitution, declares the following to be public uses:
the necessary use of lands for the construction of reservoirs or storage basins, for the purpose of irrigation or for rights of way for the construction of canals, ditches, flumes or pipes, to convey water to the place of use for any useful, beneficial or necessary purpose, or for drainage; or for the drainage of mines, or the working thereof, by means of roads, railroads, tramways, cuts, tunnels, shafts, hoisting works, dumps, or other necessary means to their complete development, or any other use necessary to the complete development of the material resources of the state, or the preservation of the health of its inhabitants.
Idaho code § 7-702 specifies that a fee simple interest may be taken for property taken for public buildings or grounds, or for permanent buildings, for reservoirs and dams and the lands they flood, flow outlets, and places for depositing debris or tailings of a mine. Easements may be taken for any other use.
In addition to its generic eminent domain powers, article 1, § 21 of the constitution allows the legislature to pass laws permitting landowners to construct drains, ditches, and levees for agricultural, sanitary, or mining purposes across the lands of others. The legislature may also provide for taking real estate needed to build and maintain drains, ditches, and levees, and prescribe the method of making such condemnation.
Ind. Code § 36-9-4-3 states that the establishment of an urban mass transportation system is a public use for which private property may be acquired. Ind. Code § 36-9-4-32 authorizes the board of directors of a public transportation corporation to condemn any interest in real or personal property for use within the taxing district of the corporation.
Ind. Code § 16-22-9-4 and 16-22-9-5 specifies that general hospitals owned and operated by nonprofit hospital corporations are a public use. It allows the county executive or the city legislative body to condemn real property or an interest in real property, immediately adjacent to and necessary for the expansion of a general hospital owned and operated by such corporations if: (1) the county executive or the city legislative body finds that the acquisition and expansion is necessary, and (2) construction begins within three years after the condemnation.
Article 1, § 4 of the constitution prohibits private entities authorized by law to expropriate property from taking or damaging property, except for a public and necessary purpose and with just compensation paid to the owner. It specifies that in condemnation proceedings, the issue of whether the purpose is public and necessary shall be a judicial question. The constitution also bars the state and its political subdivisions from taking a business enterprise or any of its assets for the purpose of operating the enterprise or halting competition with a government enterprise. But, a municipality may expropriate a utility within its jurisdiction.
In addition to generic eminent domain powers of counties and independent cities, article 3, § 40A of the constitution allows Baltimore City and Baltimore County to use “quick take” provisions. These provisions can also be used by:
1. Montgomery County and the independent cities in Cecil County for road or street projects, if the land does not contain a building.
2. the independent cities in Cecil County for water and sewer projects;
3. Washington Suburban Sanitary Commission for land in Prince Georges County needed for water supply, sewerage and drainage systems; and
4. the State Roads Commission for highway purposes.
The constitution (article 3, § 61) authorizes the General Assembly to grant eminent domain powers to counties and municipalities in “slum areas” and “blighted areas.” “Slum areas” are those where most dwellings are detrimental to the public safety, health, or morals due to depreciation, overcrowding, faulty arrangement or design, lack of ventilation, light or sanitary facilities, or a combination of these factors. “Blighted areas” are those where a majority of buildings have declined in productivity because of obsolescence, depreciation, or other causes to the extent where they no longer justify fundamental repairs and adequate maintenance.
Article 51 of the constitution specifies that he preservation and maintenance of ancient landmarks and other property of historical or antiquarian interest is a public use."
Article 3, § 17 of the constitution specifies that whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use is actually public is a judicial question to be determined without regard to legislative assertion that the use is public.
Article 1, § 27 allows the state, counties, and cities, as provided by law, to acquire by eminent domain property, or rights in property, in excess of that actually to be occupied by the public improvement or used in connection with it, as is reasonably necessary to accomplish the intended purposes.
Article 1, § 28 also allows the use of eminent domain in connection with the establishment of private ways and drains and ditches across private land for agricultural and sanitary purposes. The question of whether the contemplated use is public must be decided by the courts without regard to any legislative declaration that the use is public.
N.D. Cent. Code § 40-58-02 states that the powers conferred by the urban renewal law “are for public uses… for which public money may be expended and the power of eminent domain exercised.”
§ 3-24 of the constitution provides that in all cases of condemnation of private property for public or private use, the determination of the character of the use is a judicial question.
Article 1, § 18 of the constitution provides that the use of all roads, ways and waterways needed to promote the transportation of raw materials; mine, farm. or forest products; or water for beneficial use or drainage is necessary to the state's development and welfare is a public use.
Article 1, § 16 of the constitution specifies that the power of the state to control the use of land and waters is a form of its police powers and is not deemed to be a public use of private property, and thus not subject to the restrictions on eminent domain.
Article 1, § 16 of the constitution states that the taking of private property by the state for land reclamation and settlement purposes is for public use. It also allows the taking of land for private ways of necessity, and for drains, flumes, or ditches on or across private lands for agricultural, domestic, or sanitary purposes.
The state gives counties broad eminent domain powers and declares that the exercise of these powers is a public use when “it is directly or indirectly, approximately or remotely for the general benefit or welfare of the county or of the inhabitants thereof” (Rev. Code of Wash. § 8.08.20). Other examples of “public uses” include the condemnation of property by municipalities for community renewal of blighted areas (Wash. Rev. Code § 35.81.080) and the condemnation by any person of the beneficial use of water (Wash. Rev. Code § 90.03.040).
Article 1, § 32 of the constitution allows for eminent domain in connection with private ways, and for reservoirs, drains, flumes or ditches on or across the lands of others for agricultural, mining, milling, domestic or sanitary purposes
Wyo. Stat. § 1-26-504 allows the use of eminent domain only if (1) the public interest and necessity require the project or the use of eminent domain is authorized by the Wyoming Constitution; (2) the project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; and (3) the property sought to be acquired is necessary for the project.
The findings of the public service commission, the interstate commerce commission, or other federal and state agencies with appropriate jurisdiction are prima facie valid as to these determinations if they were made in accordance with law with notice to condemnees who are parties to the condemnation action and they are final with no pending appeals from the determinations.