Limits on the Right to Take

There are many common and not-so-common situations where a public entity may not have the power of eminent domain.  These include:

  • Property sought is outside the public entity’s territorial limits. Staff might propose to acquire property outside the public entity’s territorial limits. Extra-territorial takings are
    permitted in only certain circumstances.
  • Property sought is in excess of what is actually needed. Staff might propose the acquisition of property in excess of what is actually needed for the project or its protection. Acquiring more property than needed for the public use is not authorized unless the property is an uneconomic remnant or is a statutorily authorized substitute taking.
  • Property sought is for the primary benefit of private rather than public use. Staff might wrongfully propose that private property be acquired to aid in the development of another privately owned property.

Example: To encourage a large commercial center to locate within a city, staff proposes that the city acquire a private access for the developer across an adjoining ownership and connecting to a public street entering an interchange.

  • Property that is already or may likely be appropriated to a public use. A public agency may condemn property already appropriated to public use only if the use for which the condemned property is being taken is either “more necessary” than its current use or, alternatively, that the proposed use will not unreasonably interfere with or impair the continuance of the current public use as it exists or may reasonably be expected to exist in the future.
  • Acquisition of Properties Covered by Williamson Act Agricultural Preserve Contracts. A preliminary title report may disclose that a property, all or a portion of which a public entity proposes to acquire for a public use, is under a Williamson Act contract (Gov. Code § 51200 et seq.). Early in the project planning process, public entity staff should immediately determine if their project is covered by or exempted from the acquisition restrictions and notice requirements of the Williamson Act. If the property being considered is covered by a Williams Act contract, public entity staff should promptly comply with state notice and findings requirements.

The state Director of Conservation is charged with the duty of enforcement. General and process questions regarding acquisition of land subject to Williamson Act preserve contracts may be directed to the California Department of Conservation, Division of Land Resource Protection (916) 324-0850, or to the department’s legal office at (916) 323-6733.

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