California Eminent Domain Resolution of Necessity

Under the Eminent Domain Law, a public entity may not exercise its eminent domain power or commence an eminent domain action unless its governing body has first adopted a "resolution of necessity" concerning the proposed project and property to be taken. ( 1240.030, 1240.040 & 1245.220.) Among other requirements, a resolution of necessity must contain a declaration that the governing body has found and determined that: "(1) The public interest and necessity require the proposed project. (2) The proposed project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury. (3) The property described in the resolution is necessary for the proposed project." ( 1245.230, subd. (c) & 1240.030.) Together, these findings, referred to in section 1240.030, constitute the three elements of a finding of public necessity. (Santa Cruz County Redevelopment Agency v. Izant (1995) 37 Cal.App.4th 141, 148.) A resolution of necessity must also contain a general statement of the public uses for which the property is to be taken, a description of the general location and extent of the property to be taken, and a statement that an offer to purchase the property has been made to the owner or owners of record, or that the owner cannot be located with reasonable diligence, and other requirements imposed by law. ( 1245.230, subds. (a), (b) & (c)(4).) A resolution of necessity may be adopted "only after the governing body has given each person whose property is to be acquired by eminent domain and whose name and address appears on the last equalized county assessment roll notice and a reasonable opportunity to appear and be heard on the matters referred to in section 1240.030." ( 1245.235, subd. (a).) All other persons holding interests in the property are not statutorily entitled to notice of the hearing on the resolution. Still, judicial review "of the validity of the resolution of necessity" is available to "a person having an interest in the property described in the resolution of necessity." ( 1245.255, subd. (a); see also 1235.170 the term "property" as used in the Eminent Domain Law "includes real and personal property and any interest therein".) In People v. Chevalier (1959) 52 Cal.2d 299, the court held that, under former Code of Civil Procedure section 1241, the adoption of a resolution of necessity constituted "conclusive evidence" of the public necessity of the proposed project. (Chevalier, supra, 52 Cal.2d at pp. 304-305.) Under former section 1241, a resolution of necessity was not subject to any form of judicial review. (Chevalier, supra, at pp. 304-305.) In 1975, 16 years after Chevalier was decided, former section 1241 was repealed and section 1245.255 was enacted. As noted, section 1245.255 provides for limited judicial review of an agency's public necessity finding under section 1085. (Anaheim Redevelopment Agency v. Dusek (1987) 193 Cal. App. 3d 249 at p. 255.) The enactment of section 1245.255 did not change the predominantly legislative or "quasi-legislative" character of an agency's public necessity finding. (Dusek, supra, 193 Cal. App. 3d at pp. 258-260.) Public necessity findings are "fundamentally political questions," because "the dominant concern of legislative bodies is the effect of a proposed project on not only the property owners, but also on their other constituents." (Id. at p. 260.) Further, "'The mere fact that an agency proceeding may contain certain characteristics of the judicial process does not convert the proceeding into a quasi judicial function.'" (Ibid.) Thus, an agency's power to hold hearings, find facts, and its discretion to determine facts "does not convert legislative action into an adjudication of a private controversy." (Ibid.)