What Constitutes “Public Use” of a Property?
In North Carolina, the government has the power to seize your property under eminent domain, regardless of whether you wish to sell it — provided that you are justly compensated. However, it’s crucial to be aware that pursuant to the Fifth Amendment of the U.S. Constitution, one of the requirements of eminent domain is that the property can only be taken for “public use.” This clause extends to state governments through the 14th Amendment.
What Does “Public Use” Mean in Eminent Domain?
When private property is taken by the government to be converted for public use, this is referred to as a “taking.” Importantly, governmental taking of property for any purpose other than for the good of the public is unconstitutional.
While the parameters associated with the public use of a property can change as societal needs evolve, they are difficult to precisely define. Courts typically allow for a broad definition of “public use.” It usually encompasses anything that is meant to enrich the lives of those who live, work, or visit the area. In addition, the public use must benefit the general public of a specific locality — not just particular individuals.
Specifically, under eminent domain laws, the government may acquire a specific property if its intended use of it would serve a greater benefit than the purpose for which it is currently used. There are several factors that should be considered when it comes to whether an eminent domain proposal is justifiable. When evaluating whether there is a public necessity for the land, you should consider who the project benefits, if it is needed in that specific area, and whether there are other amenities or structures in the area that serve an identical purpose.
What Are Examples of Public Use?
Public use of a property in cases involving eminent domain usually encompasses things like transportation, public parks, public buildings, water supply, irrigation projects, and infrastructure. In fact, many national parks stem from eminent domain.
Eminent domain is commonly asserted to seize private property in order to build the following:
- Schools and hospitals
- Roads, freeways, and highways
- Parks, greenways, public gardens, and nature preserves
- Pipelines and power lines
- Water treatment plants and sewer lines
- Reservoirs
- Bridges, canals, railroads, and light rail lines
- Public transportation
Other reasons property can be condemned under eminent domain laws can include community revitalization and historic preservation. It can also be acquired for construction of public housing, airports, police stations, fire stations, and for military purposes.
The Public Use Test
If the proposed taking does not meet the criteria for a public purpose, you may be able to challenge the eminent domain process. The public use test consists of two parts: 1) whether the public has a right to definite use of that specific property and 2) whether the public would accrue a benefit if the property were seized. If both these elements are not satisfied, the government’s taking would be unlawful.
Can the Public Use Requirement Be Abused?
While it can be challenging to stop a taking in accordance with the eminent domain laws, it can be done if you can prove the government does not intend to make public use of the property. Although the term “public” is flexible when it comes to a taking, the government is prohibited from extending the term beyond the limits imposed by the Constitution and North Carolina law. The intended public use must be accurate at the time of the taking — and not hypothetical.
It's important to understand that the government may only assert its right to take property under eminent domain if the taking will result in an advantage to the community at large, rather than a few private people. But in some cases, property has been taken for the purposes of building private commercial developments as a way to create jobs and increase the tax base of a community. While this may provide an incidental benefit to private developers, the U.S. Supreme Court held in one case that such situations qualify for a taking under the eminent domain laws.
Critically, most abuse of the eminent domain laws does not stem directly from blatant economic development takings, but instead through the abuse of blight laws. As a result, North Carolina enacted Session Law 2006-224 which permits the use of eminent domain for blighted parcels, but not for any surrounding land that is unblighted.
There are very few cases in North Carolina where the appellate courts have held that no public use existed for a taking. The most recent of these few cases was decided in 2015 and arose out of Mecklenburg County. There, the appellate court held that the town of Matthews unlawfully condemned a private roadway for the private benefit of an adjacent landowner and thus did not constitute public use. See Town of Matthews v. Wright, 240 N.C. App. 584 (2015).
Contact an Experienced Eminent Domain Attorney
If you have a property issue or are facing land condemnation as the result of eminent domain, it’s essential to have a skillful property rights attorney by your side. Located in Charlotte, Murray Law provides committed representation to landowners concerning a wide range of land use matters. We welcome you to call Murray Law’s Charlotte office at 704-940-9095 to schedule a consultation to discuss your case.
