Legal Problems Arising out of Highway Programs. Topic 23-01. Condemnation Hierarchy-Competing Public Uses

Public-use property is property that is in use for a public purpose or that is set aside for a specific public purpose with the intention that the property be used for the specified purpose within a reasonable time. State transportation departments may need to take property already devoted to another public use for a transportation project by eminent domain. As the digest explains, 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 digest discusses four principal condemnation hierarchies that may be applied to takings of property, including public-use property, for transportation projects. The hierarchies are based on: (1) the identity and authority of the condemnor (e.g., the state) vis-à-vis other condemnors (e.g., municipalities and counties); (2) the identity of the owner of the public-use property (e.g., federal, state, or local government or a public agency) sought by eminent domain; (3) the relative importance of a proposed use in comparison to the public-use property’s present use (e.g., as a park, parkland, recreational area, wildlife refuge, or historic site); and (4) the inherent importance of a highway or other transportation project in comparison to a property’s current public use.   The digest analyzes state constitutional provisions that apply to takings of public-use property. Moreover, the digest analyzes state statutes that apply to takings of public-use property that may grant transportation departments either conditional or unconditional authority to take public-use property.  The digest analyzes in some detail § 4(f) of the Department of Transportation Act of 1996 and takings or constructive uses of park and recreational property, wildlife and waterfowl refuges, and historic sites, as well as the impact of the Land and Water Conservation Fund Act (LWCFA) on takings for highway projects.              The digest discusses whether the Interstate Commerce Commission Termination Act (ICCTA) and the jurisdiction of the Surface Transportation Board (STB) preempt a transportation department’s taking of railroad property and whether the Natural Gas Act (NGA) and the jurisdiction of the Federal Energy Regulatory Commission (FERC) would preempt a department’s taking of a gas or oil pipeline.               The digest explains how transportation departments may acquire land or an interest in land from the United States for a project and discusses the availability of FHWA assistance.             Finally, the digest discusses compensation of owners for takings of their public-use property; takings of public-use property as case studies for the digest; provisions of state transportation departments’ right-of-way manuals that apply to the acquisition or taking of property, including public-use property; and the transportation departments’ responses to a survey conducted for the digest.             The research should serve as useful guidance to state and federal legislators, as well as administrators and lawyers, having an interest in the acquisition of public-use properties. The research also should be useful to property owners or others with an interest in property that is subject to condemnation by a governmental authority, be it federal, state, or local. Completed. Published as NCHRP Legal Research Digest 78.


  • English


  • Status: Completed
  • Funding: $63500
  • Contract Numbers:

    Project 20-06, Topic 23-01

  • Sponsor Organizations:

    National Cooperative Highway Research Program

    Transportation Research Board
    500 Fifth Street, NW
    Washington, DC  United States  20001

    American Association of State Highway and Transportation Officials (AASHTO)

    444 North Capitol Street, NW
    Washington, DC  United States  20001

    Federal Highway Administration

    1200 New Jersey Avenue, SE
    Washington, DC  United States  20590
  • Performing Organizations:

    The Thomas Law Firm

  • Principal Investigators:

    Thomas, Larry

  • Start Date: 20180309
  • Expected Completion Date: 20190309
  • Actual Completion Date: 0

Subject/Index Terms

Filing Info

  • Accession Number: 01787233
  • Record Type: Research project
  • Source Agency: Transportation Research Board
  • Contract Numbers: Project 20-06, Topic 23-01
  • Files: TRB, RIP
  • Created Date: Nov 2 2021 2:51PM