Eminent Domain And The Public Use Doctrine

Eminent domain refers to the power of a government entity to take private property. The power can be used by the federal government in the name of a federal agency or a branch of the military services. A state, county, city, village or town can also use the power of eminent domain to take private property on its own behalf or on behalf of an agency of a government entity. In all cases, the government entity may only exercise the power of eminent domain, also called condemnation, if it needs the private property for a public use.

What Is A Public Use?

Public use has been defined as a use that would clearly benefit all of the citizens within the borders of the government entity. The creation of a city park is an example of a use that would benefit all the citizens of the city. The definition of public has expanded over the years to the point that it now includes any use that would benefit particular groups of citizens or to redevelop blighted areas.

Limited Benefit Groups

An example of the expanded public use definition as applied to a particular group would be the acquisition of private property to build housing for low-income groups or senior citizens. Although it could be argued that such a housing would be a general public use because it would provide a benefit to the community as a whole, the actual public use is limited to low-income citizens and senior citizens. The limited use does not prohibit the application of the public use doctrine.

Redevelopment Of Blighted Areas

It is not difficult to see how a general public use would be served by the taking of private property to remove and redevelop a blighted area. The crime rate could conceivably be reduced as a result of the redevelopment, and health hazards such as infectious vermin may be removed. The expansion of the public use definition, however, also allows the government entity to sell the private property to another private owner for redevelopment. For example, a parcel of property that has been abandoned in an industrial area or that has not been put to its best use, according to a municipality’s comprehensive zoning plan, can be subjected to the municipality’s eminent domain power and sold. The municipality has no obligation to retain the ownership of the property or to develop it into a park or parking garage that would benefit its citizenry.

Court decisions that challenge a municipality’s right to condemn property and sell it to a private developer usually are resolved in favor of the municipality. The municipality fulfills its responsibility of complying with the public use doctrine because it fulfills the socially recognized value of redevelopment.

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