Resolution of Necessity in Eminent Domain

Part 3, Title 7, Chapter 4, Article 2 deals with a resolution of necessity in precondemnation activities in the California eminent domain law.

Section 1245.210 defines the term “governing body.”

Section 1245.220 prohibits a public entity from commencing an eminent domain proceeding until its governing body has adopted a resolution of necessity that meets the requirements of this article.

Section 1245.230 requires the resolution of necessity to contain three specified provisions.

Section 1245.235 allows the governing body of the public entity to adopt a resolution of necessity 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.

Section 1245.240 provides that, unless a greater vote is required by statute, charter, or ordinance, the resolution must be adopted by a vote of two-thirds of all the members of the governing body of the public entity.

Section 1245.245 specifies that property acquired by a public entity by any means set forth in law that is subject to a resolution of necessity adopted must only be used for the public use stated in the resolution unless the governing body of the public entity adopts a resolution authorizing a different use of the property by a vote of at least two-thirds of all members of the governing body of the public entity, or a greater vote as required by statute, charter, or ordinance. The resolution must contain specified information.

Section 1245.250 provides that a resolution of necessity adopted by the governing body of the public entity pursuant to this article conclusively establishes the matters referred to.

Section 1245.255 specifies that, in if the taking is by a local public entity, and the property is electric, gas, or water public utility property, the resolution of necessity creates a rebuttable presumption that the matters referred to are true. This presumption is a presumption affecting the burden of proof.

Section 1245.255 states that a person having an interest in the property described in a resolution of necessity adopted by the governing body of the public entity pursuant to this article may obtain judicial review of the validity of the resolution based upon the specified procedures.

Section 1245.260 says, if a public entity has adopted a resolution of necessity but has not commenced an eminent domain proceeding to acquire the property within six months after the date of adoption of the resolution, the property owner may, by an action in inverse condemnation, do either or both of the specified actions.

Section 1245.270 states that a resolution of necessity does not meet the requirements of this article if the defendant establishes by a preponderance of the evidence both of the specified actions. Nothing in this section precludes a public entity from rescinding a resolution of necessity and adopting a new resolution as to the same property, subject to the same consequences as a conditional dismissal of the proceeding.