When is a Resolution of Necessity Tainted By Prior Agency Obligations?


One of the prerequisites to instituting an eminent domain action is the governing agency's adoption of a resolution of necessity to acquire the necessary property. At the time of adopting the resolution, the agency cannot be precommitted to moving forward with the condemnation. In other words, the resolution hearing cannot simply be a "rubber-stamped," predetermined result.

While it has happened, it is a very difficult, uphill battle for a property owner to prove that the government agency was precommitted to the taking at the time of the resolution hearing. The agency can -- and usually does -- have many pieces already lined up, including project environmental approvals, funding constraints, construction contracts, and the like. However, as long as the agency still has discretion at the time of the resolution hearing (such as the ability to consider alternative design options), the agency is typically safe from the rubber-stamp scrutiny. A recently issued unpublished California Court of Appeal decision provides an excellent example of this.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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