Although federal, state and local governments are empowered to take private property under the concept of eminent domain, they may not do so without restrictions and limitations. For instance, property owners must be given just compensation for the loss of a portion or all of their property. Additionally, the taking of the property must be justified and necessary.
When the population of a town or other municipality grows, it naturally follows that the government will be compelled to improve and expand the community's public works. These projects can include many things like:
-Addition or expansion of mass transit systems
-Installation of utility lines
-Construction of new public schools
-Widening of roads and highways
-Development of new parks
-Improvement of freeways with a new interchange
Each of these projects can be said to improve the community's overall livability, which is likely to benefit the general public. Accordingly, these projects could easily receive government approval for taking property via the local eminent domain laws. Existing private homes, commercial buildings and industrial installations all may be affected by these community projects. However, the government must meet the necessity requirement as well as offering just compensation.
Eminent domain justification may be satisfied in a number of ways. Any government entity may establish its own rules and qualifications for the necessity requirement. In some jurisdictions, the government agency that is overseeing the project must prove the necessity requirement before receiving approval to proceed with the eminent domain action.
Usually, the government agency must establish that the property they want to acquire is necessary for the project. In fact, the entire burden of proving the necessity of taking that piece of private property rests on the government agency. It is the right of the landowner to protest the taking by asserting that the condemnation action is not necessary or justified. These are extraordinarily difficult cases for private property owners to win because the government agency generally must prove eminent domain justification before proceeding with taking the property. This means that unless due process was ignored or another technicality interferes with the legality of the taking, it will be virtually impossible for the property owner to prevail.
Still, some landowners have managed to prevent a taking or to limit the amount of property that is taken by a government agency by filing a protest or lawsuit. If the court or other authority finds in favor of the property owner, then the taking may be either entirely prevented or modified to include less of the plaintiff's parcel of land.
Home and business owners who have received a notice about an upcoming eminent domain action would be wise to consult with real estate and legal professionals who have knowledge in this area. In their enthusiasm for new public improvement projects, government agencies have shown a tendency to be overzealous in their need to assume control of private property. Unless the owners become educated about their rights and compel the government to demonstrate the justification or necessity of the taking, they may find themselves on the receiving end of a bad deal.
Government agencies may overestimate how much land is needed to complete a particular project. Unless citizens demand substantiation of the necessity for taking the land, the government is likely to abuse its power. In fact, challenging the necessity of the eminent domain action is one of the only methods by which the taking can be stopped, even if only temporarily. The issue of just compensation is raised far more frequently in administrative and judicial settings, but these challenges do not put a stop to the eminent domain proceedings. However, if a property owner claims that there is no eminent domain justification, they may be able to stop or at least stall the proceedings.
The decision-making authority may decide that the government has overstepped its bounds when it comes to the amount of land that is needed to satisfy the public purpose. This may mean that the owner retains all or at least a portion of their land. Even if the decision does not go in favor of the owner, they will at least know that the government was acting within its legal rights by proving the necessity of the taking.