Public Use and Public Purpose

This Article is written by Owners’ Counsel of America for general informational purposes only.  It is intended to assist landowners by providing basic information about the “Public Use” clause within the Fifth Amendment of the U.S. Constitution, including how the meaning of the term “Public Use” has evolved over time. This Article is not to be viewed as providing legal advice or to be considered as a substitute for consulting with an experienced eminent domain, takings or property rights lawyer on the matters covered herein. The definition of all hyper-linked terms can be found in the Dictionary of Key Terms on the OCA Website. 

Public Use Defined

The Takings Clause of the Fifth Amendment to the United States Constitution is clearly worded and succinct. It states that: “Nor shall private property be taken for public use, without just compensation.”

What is meant by the term “public use” has evolved over the last century. The original interpretation of the term may have contemplated a somewhat narrow definition requiring actual use by members of the public. For instance, think of the need to acquire property in order to construct public roads, highways, airports and even utilities that serve development, etc. 

However, over time more and more states begin to embrace a broader view of the term, such that public use came to be associated with public purpose or public benefits. Here, think of sports stadiums, convention halls, museum complexes and similar facilities and uses where members of the public congregate.  

Eventually, this ever expanding interpretation of the “public use” clause came before the U.S. Supreme Court in a series of landmark cases. Unfortunately for property owners, in each of these cases the Court sided with governmental bodies in interpreting the term expansively, thereby allowing takings for the purposes of rectifying urban blight, facilitating land redistribution, and most recently, in Kelo v. City of New London, promoting economic benefit, even though the property being taken was not blighted.  

This evolution in the meaning of “public use” has led to substantial public discourse and controversy, particularly in situations where private property is allowed to be taken for essentially private uses that may only indirectly or incidentally benefit the general public. Here are a few examples:

• Property being taken as part of an urban renewal plan only to be transferred to private parties for retail or commercial development 

• Property being taken as part of a redevelopment plan to be transferred to private parties to promote greater tax revenue generation or other economic benefits 

• Property being taken by a pipeline company for the transport and sale of natural gas to foreign markets 

Who Decides What Is A Public Use? 

In many states, the determination of whether a “public use” exists in order to justify a taking under the Fifth Amendment to the U.S. Constitution rests with the judiciary, i.e. the court. This means that it is often the responsibility of the judge overseeing an eminent domain trial to make a legal determination about whether the power of eminent domain is being exercised for a lawful public use. 

However, many state laws undermine the judge’s power to make a  legal determination of “public use” by requiring that the court or judge give “deference” to any legislative determination that a particular use is in fact a public use. Essentially, this means that if there is a state statute or other legislative measure  recognizing a particular use to be “public use”, the court must defer to that finding, thereby removing the court’s general authority to determine otherwise.

Burden of Proof 

In jurisdictions where the court does have the power to inquire into whether a use is indeed a legitimate “public use”,  the court may hold an evidentiary hearing on the issue, at which point both sides (the property owner and the condemning authority) can submit evidence in support of their position. Which party bears the burden of proving whether a public use does or does not exists, varies from state to state, with some states placing the burden on the condemning authority while others place it on the property owner. 

Private Purposes 

Some state constitutions and statues recognize in limited circumstances that the power of eminent domain can be used to further or benefit what is essentially a private use or purpose. So, for instance, in situations where private property may be landlocked and without access, in some states the private owner of such property may have the right to bring an eminent domain lawsuit to acquire access across adjacent private land. The thinking in these cases is that the public does not benefit from land that is without access, and thus presumably unprofitable or unable to be put to an economic use.

If you are involved in an eminent domain taking and have doubts regarding whether your property is being taken for a lawful “public use,” it is advised that you consult with an OCA lawyer or other lawyer experienced in eminent domain matters.