What is Eminent Domain?
What you are describing sounds more like eminent domain than condemnation. Eminent domain is the government's right to acquire private property for public use. The governmental entity may be a federal, state, county or city government, school district, hospital district or other agencies. A public entity, rather than a private party, may pursue eminent domain, and it must be for a public, rather than a private use. The taking of property may be with or without the permission of the owner. The Fifth Amendment to the Constitution provides that "private property [may not] be taken for public use without just compensation." The Fourteenth Amendment added the requirement of just compensation to state and local government takings.
There are eminent domain laws which provide who can exercise the right of eminent domain and for what purpose. If the easement or property cannot be purchased, either the utility, city or county or state, can condemn property if it is for an approved purpose. Utilities generally have eminent domain rights sometime in cooperation with a governmental agency. To use the power of eminent domain, the condemnor must be authorized, by statute or ordinance, to take the property for a specific public purpose. The condemnor must also try to buy the property from the property owner by good faith negotiation.
Early uses of eminent domain were primarily for public works, such as the utilities of the Tennessee Valley Authority or the grand highway schemes of the years after World War II. In 1954, the Supreme Court ruled in Berman v Parker that private projects meet the definition if they have a "public purpose". This rationale was used by the court to approve a slum-clearance plan of the government of Washington, DC. It continued to be used to clear "blighted" areas of American cities for redevelopment . Debate in eminent domain cases, like Kelo v. New London, decided in 2005 by the Supreme Court, has centered about the definition of "public use." In recent years "public good" has been expanded to include private economic developments which use eminent domain seizures to enable commercial development for the purpose of generating more local tax revenue.
The eminent domain process usually involves passage of a resolution by the acquiring agency to take the property (condemnation), including a declaration of public need, followed by an appraisal, an offer, and then negotiation. The owner who believes that just compensation is not being offered for the taking of their property may bring suit against the governmental agency. However, by depositing the amount of the offer in a trust account, the government becomes owner while a trial is pending. Some of the public uses supporting eminent domain include schools, streets and highways, parks, airports, dams, reservoirs, redevelopment, public housing, hospitals and public buildings.
The answer may also depend on the language of the ordinances involved and all the circumstances involved. Zoning ordinances often contain a set of definitions that apply to the ordinances contained within the section. It may be also possible for the developer to petition for a special use permit or variance. The most common way of providing relief from the provisions of a zoning ordinance is through the granting of a variance. This is an authorization to use land or to operate a business in a way that would otherwise be prohibited by the zoning ordinance. It is also used to give relief from, or permit reduction of, one or more requirements of the ordinance as applied to a particular site. We suggest contacting the local zoning commission or land use department for clarification if definitions aren't provided. It may be possible to request a ruling on whether the proposed use is acceptable for the area.
Injunctive relief consists of a court order called an injunction, requiring an individual to do or not do a specific action. It must be proven that without the injunction, harm will occur which cannot be remedied by money damages. To issue a preliminary injunction, the courts typically require proof that
(1) the movant has a ‘strong’ likelihood of success on the merits;
(2) the movant would otherwise suffer irreparable injury;
(3) the issuance of a preliminary injunction wouldn't cause substantial harm to others; and
(4) the public interest would be served by issuance of a preliminary injunction.
A request for a declaratory judgment may be filed with the court, seeking to have a judicial declaration of the rights of parties involved. A petition for a declaratory judgment asks the court to define the legal relationship between the parties and their rights with respect to the matter before the court. It is used to determine the legal status of a situation, rather than the enforcement of the rights involved.
The answer will depend on all the circumstances involved. We suggest you contact a local attorney who can review all the facts and documents involved.