What is 'public use'?
When government takes property through eminent domain, it does so because it needs the land for a public use or project. Public use is not always as clear as the word suggests, and there are cases when the intended use does not seem to others to be "public."
In situations where a landowner challenges whether the government's taking of the property is for public use, there can be a hearing where a judge will make a determination. In this post, we will look at what "public" use is and what happens at a hearing that challenges eminent domain based on lack of public use. These challenges are known as "right to take" challenges, which allege that the government has not met its burden of proving that the proposed use is public. Other right to take challenges can include whether the property sought to be acquired is necessary for the proposed project or public use, and whether the project as proposed is planned in a manner that causes the least possible private injury.
Examples of public use
Courts have widely interpreted the term "public use." And it is important to know that every member of the public doesn't necessarily need to "use" the property to support an eminent domain claim. The use does, however, need to serve a benefit or advantage to the public.
The government has successfully taken properties to build highways, pipelines, parks, utility wires, and even commercial buildings.
Determining "public use" at a hearing
If all efforts to negotiate a fair transaction have failed, the case will proceed to a hearing where a judge will hear arguments from both sides of the dispute. Both parties can present evidence and witness testimony to support their argument.
Then the judge will make a decision. This can take weeks or sometimes years and unfortunately, the hearing will likely not put a stop to the taking of the land. However, if the court sides with the original property owner, it will award financial remedies.
As such, readers should understand that the legal process is complicated and may not necessarily allow a person to keep his or her property. However, property owners have the right to be fairly compensated for any land or property taken by the government. To ensure this happens, you can discuss with an attorney your legal options and remedies available.