Periodically, a new public project needs to acquire land that is already put to an existing public use. In order to condemn such land, the condemning entity must demonstrate that the proposed use is either a compatible use or a "more necessary public use." If thorough due diligence is not conducted in the early project stages to identify and address impacted existing public uses, a condemning entity may later face a right to take challenge based on the position that the proposed use is not more necessary than the existing public use.
So, what uses qualify as a more necessary use?
Appropriated to a Public Use
If a property necessary for a project is already appropriated to a public use and the proposed use is incompatible with the existing use, the court determines which agency has priority and which use is a more necessary use. (Code Civ. Proc. § 1260.020(b).) The initial determination to be made is whether or not a property is "appropriated to public use," which is determined by whether or not the property is either already in use, or is specifically set aside, for a public purpose. (Code Civ. Proc. § 1235.180.) Mere public ownership of property or an uncertain and contingent use is insufficient to prove appropriation; there must be an existing use or a bona fide showing of the ability and intention to devote the property to a future public use. (East Bay Municipal Utility District v. City of Lodi (1932) 120 Cal.App.740, 755-756.) A court makes this determination based on the conditions that exist on the property at the time that condemnation is sought. The defendant in the eminent domain action has the burden of proof to establish that the property is appropriated to a public use. (Code Civ. Proc., § 1240.620.)
Rebuttal Presumptions of More Necessary
If the court makes the initial finding that the property is "appropriated to a public use," the court then will determine whether the intended use is "more necessary" than the appropriated use by balancing the needs and public benefits of both uses by the government agencies. (Code Civ. Proc. § 1260.020(b).). The Eminent Domain Law sets forth certain rebuttable presumptions that apply to the making of this determination, including the following: (1) the state's use is presumed to be a more necessary public use (Code Civ. Proc. § 1240.640) and (2) a local public entity's use is presumed to be a more necessary public use than any use to which the property might be put by any other local public entity (Code Civ. Proc. § 1240.660).
The Eminent Domain Law defines the following:
- "State" as "the State of California and includes the Regents of the University of California"
- "Public entity" to include "the state, a county, city, district, public authority, public agency and any other political subdivision in the state."
- "Local public entity" as "any public entity other than the state"
(Code Civ. Proc. §§ 1235.200, 1235.190, 1235.150.)
Generally, the condemning entity will have the burden of proving that its proposed use is both inconsistent with and more necessary than, the existing use. (Code Civ. Proc., § 1240.620; City of Los Angeles v. Los Angeles Pac. Co. (1916) 31 Cal.100, 115.) This typically occurs because the existing use is considered prior in time to the proposed use and accordingly given priority, per statute. (See, Code of Civil Procedure §§ 1240.640, 1240.660.)
Balancing Factors to Determine "More Necessary Public Use"
However, even if it seems like the existing use will take priority based on the above, the presumptions are rebuttable and the courts essentially conduct a balancing test, weighing the needs of the agencies and also determining which use would produce the greater public benefit. Case law has created a non-exhaustive list of the factors that are typically considered, including economic and non-economic factors. Some of them include:
- Economic
- Costs
- Relocation expenses
- Economic benefits
- Noneconomic factors
- Relative public benefit derived from each use
- Alternatives available to each party if they don't receive the contested property
- History of public access to an existing use
- History of each party's use of its other property
- Community acceptance and impacts of each use upon non-parties to the proceedings
- Whether a taking is part of an integrated plan or redevelopment effort
- The existence of any unique cultural or historic value in a property
- The existence of any endangered or nonrenewable resources on a property
- The possibility of consequential effects such as water pollution or devaluation of abutting property from a use
- Protection of settled expectations and capital investment in an existing use
- Promotion of integrated planning and juxtaposition of complementary uses
- The preservation of long-term uses
- Long term public welfare
- Promotion of parties' good-faith efforts to reach accommodation
- Respect for the wishes of private citizens who dedicate property to public use
- Promotion of economic efficiency
This fact intensive analysis requires substantial information about the proposed project and the current and historical uses of the property at issue.
Conclusion
While acquiring property for a project that is already put to a public use is feasible, there is a process to evaluate the priority of uses and the factors that make one use "more necessary" than another. In early project planning, a public entity should determine if any existing public uses will be impacted, if there are ways to make such uses compatible with the proposed use and then the justifications as to why the proposed use is more necessary. Ultimately, if thorough due diligence is conducted, the condemning entity is less likely to face right to take challenges, or will be in a stronger position if one is raised.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
