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State transportation departments appear to have sufficient authority to take public-use property for their highway and other transportation projects. However, there are some kinds of public-use property, such as parks and recreational areas, for which a transportation department may need specific statutory authority or legislative approval and/or must comply with statutory conditions and requirements before taking the public-use property.

The TRB National Cooperative Highway Research Program's NCHRP Legal Research Digest 78: Condemnation Hierarchy—Competing Public Uses discusses four principal condemnation hierarchies that may be applied to takings of property for transportation projects.

The digest also includes three additional resources:

RESOURCES AT A GLANCE

Topics

Suggested Citation

National Academies of Sciences, Engineering, and Medicine. 2019. Condemnation Hierarchy—Competing Public Uses. Washington, DC: The National Academies Press. https://doi.org/10.17226/27189.

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Publication Info

184 pages |  8.5 x 11 |  DOI: https://doi.org/10.17226/27189
Chapters skim
NCHRP LRD 78: Condemnation Hierarchy Competing Public Uses 1-1
CONTENTS 2-4
I. INTRODUCTION 5-5
II. MEANING OF THE PUBLIC-USE DOCTRINE 6-7
III. CONDEMNATION HIERARCHIES FOR TAKINGS OF PUBLIC-USE PROPERTY 8-8
IV. STATE CONSTITUTIONAL PROVISIONS APPLICABLE TO TAKINGS OF PUBLIC-USE PROPERTY FOR TRANSPORTATION PROJECTS 9-9
V. STATE STATUTES APPLICABLE TO TAKINGS BY EMINENT DOMAIN OF PUBLIC-USE PROPERTY 10-15
VI. WHETHER STATE CONSTITUTIONAL PROVISIONS AND STATUTES MAY BE CONSTRUED TO PERMIT TAKINGS OF PUBLIC-USE PROPERTY 16-16
VII. EFFECT OF RESTRICTIONS IMPOSED BY STATUTE, A DEED OF DEDICATION, OR A CONSERVATION EASEMENT ON TAKINGS OF PUBLIC-USE PROPERTY 17-17
VIII. WHETHER MUNICIPALITIES, COUNTIES, OR LOCAL PUBLIC AGENCIES MAY TAKE PUBLIC-USE PROPERTY 18-22
IX. ACQUISITION OF PUBLIC-USE PROPERTY OWNED BY PUBLIC UTILITIES, RAILROADS, AND PIPELINES 23-28
X. TAKINGS OF TEMPORARY CONSTRUCTION AND OTHER EASEMENTS 29-29
XI. TAKINGS OR CONSTRUCTIVE USES OF PROPERTY PROTECTED BY 4(F) OF THE DEPARTMENT OF TRANSPORTATION ACT OF 1996 30-39
XII. EFFECT OF THE LAND AND WATER CONSERVATION FUND ACT ON ACQUISITIONS OF LAND FOR HIGHWAY PROJECTS 40-42
XIII. STATE TRANSPORTATION DEPARTMENTS ACQUISITION OF LANDS OR AN INTEREST IN LANDS FROM THE UNITED STATES 43-43
XIV. COMPENSATION OF OWNERS FOR TAKINGS OF PUBLIC-USE PROPERTY 44-52
XV. CASE STUDIES OF TAKINGS OF PUBLIC-USE PROPERTY 53-55
XVI. STATE TRANSPORTATION DEPARTMENTS RIGHT-OF-WAY MANUALS APPLICABLE TO ACQUISITIONS OR TAKINGS OF PUBLIC-USE PROPERTY 56-60
XVII. BEST PRACTICES STATE TRANSPORTATION DEPARTMENTS USE WHEN ACQUIRING OR TAKING PUBLIC-USE PROPERTY 61-61
XVIII. SUMMARY AND CONCLUSIONS 62-62
APPENDIX C SUMMARY OF TRANSPORTATION DEPARTMENTS RESPONSES TO THE SURVEY 63-63
APPENDIX D STATE CONSTITUTIONAL PROVISIONS APPLICABLE TO TAKINGS OF PROPERTY, INCLUDING PUBLIC-USE PROPERTY 64-77
APPENDIX E STATE STATUTES APPLICABLE TO TAKINGS OF PROPERTY, INCLUDING PUBLIC-USE PROPERTY 78-127
APPENDIX F LINKS TO STATE DEPARTMENTS OF TRANSPORTATION RIGHT-OF-WAY MANUALS 128-130
APPENDIX G DOCUMENTS PROVIDED IN RESPONSE TO THE SURVEY OF STATE TRANSPORTATION DEPARTMENT 131-186
ACKNOWLEDGMENTS 187-192

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