James R. Balmforth: Real Estate Lawyer Lindon Utah

The Fifth Amendment states that private property can only be taken for a “public use.” If the government or other condemnors may take private property only for valid public uses, how do we determine if the taking is for a public or private use? The “public use” doctrine can be described as an “essentially contested concept.” This suggests that its meaning has been subject to debate over time. Various courts and legislatures have defined “public use” either from a narrow or a broad perspective. A narrow reading of “public use” indicates “used by the public.” Under this definition, uses such as for bridges, highways, and schools qualify as valid public uses because the public, or at least some segment of it, can actually physically use the property. Critical here is that more than one person benefits and uses the property.

A second, broader definition of “public use” equates the meaning to include the “public advantage,” “promoting the public welfare,” the “public good,” and “public necessity.” Here it is not essential that the public actually use the property so long as they benefit from the taking in some way. Again, more than one person must benefit from use of eminent domain. This meaning suggests that almost any project can be construed as a public use, as long as it is shown that it furthers economic development, public welfare, or a better use of local resources. If your property is being taken away by the state or city for public use, contact an experienced Lindon Utah real estate lawyer.

What is critical to any conception of seeking to determine what constitutes a valid public use is what the term does not permit. The Takings clause does not permit employment of eminent domain for a private use. Efforts to distinguish between a public use and a private benefit have produced various tests. They range, as noted above, from insisting that the public have a right to use the property taken, or that everyone must benefit from the project for the condemnation to be considered valid, to a private acquisition being one where the private benefits are primary and not secondary to the public benefits.

Despite these tests, it remains difficult to differentiate between a public and a private use for a few reasons.

The most important factor affecting the meaning of public use is that local customs and conditions have significantly influenced the meaning in both the United States and individual state constitutions. Irrigation of private property in a dry climate, given local weather conditions, the state of the economy, and patterns of land ownership may be considered a valid public use in one community; such irrigation in a wet climate may not be considered a valid public use, but may instead be seen as simply favoring a private interest. Legislatures are clearly influenced by local conditions when determining eminent domain policy, and local courts pay great respect to local determinations of public use. The law on what constituted a valid “public use” was constructed from the bottom up, with local jurisdictions basing determinations upon local conditions and needs.

The government has broad authority to take private property valid public use so long as just compensation is paid to the owner. The question of why a specific piece of property should be acquired is a question about planning. It is about whether there is an alternative way to accomplish the same project without taking a specific piece of land or property. One of the ugly legacies of the 1950s and 1960s was that many highways and economic redevelopment projects appeared to target low-income neighborhoods and communities populated by people of color. These projects often split neighborhoods in two, relocated scores of individuals, or otherwise devised plans that either seemed blind to the impact it was having upon these populations or, even worse, were purposely directed toward them. In either case, asking why a specific piece of property needed to be taken raises some questions about the planning process, the potential political motives, and perhaps a host of other issues and that questioned the reasoning for the taking.

what legal process must be followed for the government to take property? Clearly it is the case, first, that not just anyone can use eminent domain to take property. In most cases, a private person who tries to take the property of someone else would be committing theft or stealing. Thus, the person taking the property, a condemnor, must be legally empowered to use eminent domain. In most cases, the condemnor is the government. This could be the federal government, or it could be a state or local government such as a city. But a government condemnor could also be its agent. It might be a department of transportation, or perhaps a parks department. In addition, the condemnor could also be an economic development agency of a state or local government. It could also be an airport, or any of a score of other governmental or quasi-governmental units giving the power of eminent domain. While states have inherent authority to condemn, these other units of government do not have the authority to use eminent domain unless given authority by a state government. This means that, lacking statutory authorization, a city or town cannot take property.

But the government is not the only possible condemnor. Governments can also designate private corporations or individuals to be condemnors. In many situations, governments have given eminent-domain authority to public utilities, such as power companies, so that they can build transmission lines for electricity or gas. Railroads, as noted earlier, have been given the power of eminent domain, as have telecommunications companies. All of them have been given this authority so that they can provide functions or services that elected officials have decided are in the public good to provide. However, in some cases, governments may even give eminent-domain authority to private individuals for the same reasons that it may be given to a corporation. Thus, while a condemnor is usually a governmental entity, it need not always be so.

Imagine that a condemnor wants to use eminent domain to acquire property. In particular, imagine that someone wants to condemn or take your home or business with eminent domain. If that were to occur, what must the government (or any condemnor) do in order to take your property? Contrary to what many might think, the decision to take property is not a big surprise to most owners and the process is not usually arbitrary. Instead, several steps must usually be followed or complied with before the government can actually take title to property.

Roughly, there are three basic processes for using eminent domain. The most basic is when the government actually uses eminent domain to take private property. The second invokes what are called “quick-take laws” to expedite the taking process. Quick-take laws allow for property to be condemned even if all the issues surrounding the taking, such as the price for the property, have not been resolved. The third is when an owner either alleges a regulatory taking or when the government has allegedly taken property and the owner sues to seek compensation. This is called an inverse condemnation action.

Normal Taking

The first and most basic process is when the government intends to acquire specific property for the purposes of some project, such as the building of a highway or perhaps a new shopping center. This type of condemnation project will be referred to as a “normal taking.” A normal taking just does not occur out of nowhere. It is rare that the government just decides at the spur of the moment and without notice to use its eminent-domain power to acquire property for the purposes of building a road or a shopping center. While it is possible that in a real emergency, such as a natural disaster, eminent domain might be deployed rather suddenly, this would definitely be a rare exception to what happens with a normal taking. In most emergency situations, the law already allows the government to enter or seize property and that is not considered an act of eminent domain. For example, if one’s house caught on fire and firefighters entered the property to extinguish the blaze, owners could not sue for trespass or claim that a taking had occurred.

Moreover, if in nonemergency situations the government did act without notice to the owner to take property, that would be a violation of the law and the owner would have sufficient remedies and defenses to challenge such an action. In brief, the way the government acted here probably would have violated the Due Process clause of the Fourteenth Amendment .While many might think that the decision to take property is a sudden or perhaps an unexpected or quick decision, the reality is that, by the time the government has decided to use eminent domain to acquire property, numerous actions have already taken place. The actual use of eminent domain is generally a last resort or last step in a process the government uses when it wishes to undertake a public project.

In the case of a normal taking, there are several steps in the condemnation process:

• Government develops a comprehensive plan for development

• Public hearings held on the comprehensive plan

• Specific plan for development is created

• Hearings on the specific plan is held

• Properties needed for the project are identified

• Properties are appraised

• Condemnor/developer begin efforts with property owners to purchase property

• Relocation assistance for tenants, owners

• If owners sell, then condemnors take title of property

• Government passes resolution/hearing to initiate condemnation process

• Hearing held on public use and condemnation resolution

• Owner notified of intent to condemn and served with papers

• Court hearing for condemnation scheduled

• Pretrial motions, hearings scheduled

• Court hearing and trial

• Court judgment

• Appeals, if any

• Enforcement of judgment

• Government takes title

Generally, the first step in any condemnation process takes place years earlier, before the government actually moves to acquire a piece of property, at the planning stage. There are two types of plans that a government might undertake as part of planning a project. The first is a comprehensive plan, and the second is a plan for a specific project. A comprehensive plan is the most basic type of plan that a government can create when it comes to land use within its borders. Many states have laws that comprehensive plans have to be developed and rewritten every so many years, such as once per decade following the census. A comprehensive plan first performs a survey of how property is currently used in an area. It examines, among other things, the current zoning code, for example. It compares how all the parcels of land in a city are zoned to how they are actually used.

Another task of a comprehensive plan is to look at the current demographics of a community. These demographics include information we would want to know about the ages, size of families, birth and death rates, and immigration and emigration patterns. This information is useful in terms of trying to know if the population is increasing or decreasing, where people are moving to, and how living patterns may be changing.

Yet another task of a comprehensive plan is to understand the current state of business in a community—what types of business, commerce, and so on, is taking place. Again, it is useful to inventory this information so that one can learn something about the services available in an area, asking if the community has sufficient grocery stores or other services it may need or want. Finally, the comprehensive plan might also look at other issues such as roads and highways, mass transit and transportation routes, the quality and availability of local government services, health care needs and delivery, the tax base, crime, and perhaps a host of other factors. In a nutshell, the comprehensive plan seeks to take a picture of a community in an effort to understand its strengths and weaknesses.

If your property has been included in a comprehensive plan, consult an experienced Lindon Utah real estate lawyer. It is important that you make your objections heard.

Lindon Utah Real Estate Attorney

When you need help with real estate law in Lindon Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We do evictions, foreclosures, quiet titles, easements, boundary distupes, and all types of real estate law. We want to help you.