Challenging the Right to Take: What Happens When a Government Agency Requires a Property that is Already Devoted to a Public Use?
Posted in Right to Take

Often times government agencies require property for a public project that is already put to a public use. What are the acquiring agency’s options, assuming an agreement cannot be reached prior to filing a condemnation action?

1.  A condemning agency may acquire property that is already devoted to a public use if the proposed use will not unreasonably interfere with or impair the continuance of the existing public use. The complaint and resolution of necessity must specifically reference the Eminent Domain Law for joint public use. (Code of Civil Procedure section 1240.510). If a defendant objects and proves that its property is already devoted to a public use, the acquiring agency has the burden to prove that its proposed use will not interfere with or impair the existing public use.

2. Alternatively, a condemning agency is entitled to acquire property already devoted to a public use if the use for which the property is sought is a more necessary public use. The complaint and resolution of necessity must specifically reference the Eminent Domain Law for more necessary public use. (Code of Civil Procedure section 1240.610). Again, if a defendant objects and proves that its property is devoted to a public use, the plaintiff has the burden to prove that its proposed use is a more necessary public use. Eminent Domain Law provides specific legislative presumptions of what constitutes a more necessary public use, establishing a hierarchy within the government:

  • Where property has been put to a public use by any person other than the state, the proposed use by the state is presumed to be a more necessary use. Accordingly, when the state is the condemning agency or property owner, the state carries a presumption of needing or utilizing the property for a more necessary public use over any other party. (Code of Civil Procedure section 1240.640).
  • Where property has been put to a public use by any person other than a public entity (such as by a public utility), the public entity’s use is presumed a more necessary use. As such, when a public agency is the condemning agency or property owner, the public agency carries a presumption of needing or utilizing the property for a more necessary public use over any other person (other than the state). (Code of Civil Procedure section 1240.650).
  • Where property has been put to a public use by a local public entity, the use is presumed to be a more necessary use than any use to which such property might be put to by another local public entity. (Code of Civil Procedure section 1240.660).

The legislative presumptions are rebuttable, although courts are reluctant to disturb a legislative determination of what constitutes a more necessary public use. Aside from the legislative presumptions, whether a proposed public use is more necessary is a question of fact to be alleged in the condemning agency’s complaint and determined by the court.

Even where a court finds that a proposed public use is more necessary, a defendant is entitled to continue the public use to which the property is already appropriated if continuing the public use will not unreasonably interfere with, impair, or require a significant alteration of the more necessary public use. If the court determines that a defendant is entitled to continue the public use, the parties must enter into an agreement specifying the terms and conditions upon which the defendant may continue the public use, along with the terms and conditions of the acquisition, and the manner and extent of the use by both parties. (Code of Civil Procedure section 1240.630, subdivision (b)).

 

  • Associate

    Katrina (Diaz) Wu is an eminent domain and real estate litigation attorney focusing primarily on eminent domain, inverse condemnation, tort, regulatory takings, and real estate and business valuation matters.  Katrina also ...

California Eminent Domain Report is a one-stop resource for everything new and noteworthy in eminent domain in California. We cover all aspects of eminent domain in California, including condemnation, inverse condemnation, and regulatory takings. We also keep track of current cases, project announcements, budget issues, legislative reform efforts, and report on all major California eminent domain conferences and seminars.

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