Recent Developments in Eminent Domain: Public Use
“The Summer 2012 issue of the Urban Lawyer, the law review published quarterly by the ABA’s Section of State and Local Government Law and UMKC law school is now available on-line, and includes my short article on the latest developments in public use in eminent domain law.
The article covers the “common carrier” issue from Texas, necessity in private takings, several procedural issues including appealability of a determination that a taking is (or isn’t) for public use, and First Amendment spin-off issues related to eminent domain. “
Thomas, Robert H. The Urban Lawyer Summer 2012. Vol 44 No 3 pages 705 – 717.
“The Colorado Supreme Court rejected the court of appeals’ lenient test of necessity, holding that in a private condemnation, the condemning landowner must show “necessity,” which means:
the condemnor must demonstrate a purpose for the condemnation that enables the trial court to examine both the scope of and necessity for the proposed condemnation, so that the burden to be imposed upon the condemnee’s property may be ascertained and circumscribed through the trial court’s condemnation order.
Proof of necessity “turns on the unique facts and circumstances of each particular case,” and the scope of the condemned easement must be limited to the property that is “indispensable” to the condemnor’s intended use of his own property.”Page 708
“In some states, the question of whether a taking is “for public use” is entitled, by statute, to full resolution before addressing the question of just compensation.27 This makes sense given that questions of value come into play only after final determination of whether the condem- nor can take the property at all.” Page 710
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