Is Eminent Domain OK When it Benefits Private Developers?

No. If we haven't the right to decide when, or if we are going to sell our own property, and for how much, the whole concept of property becomes moot. Actually, it largely has already, but this is a very big further step.

I think there is much more to be said on this topic, but I haven't spend much time thinking on it yet.

So which tyranny is it to be ... a tyranny of the majority, or of the minority? A private developer, though given the construction contracts and the authorization to commercially develop an area or neighborhood to improve the tax base of the community as a whole, is not The Beneficiary opf The Land Grab, but rather the implementor of a program intended to better the quality of life for the community as a whole. I would say that if the options have been explored, and the area or neighborhood in question is the best and most practicable location for planned development, then The Community is obliged to proceed in its own interest, for the good of the greater number. Compensation should be just, and care should be taken to ease the required transition of the residents or business adversely affected, but progress entails change. A thing or condition is not per se "Right" or "Inviolable" simply because "It has always been this way". If that were the case, we'd all still be hunter-gatherer cave dwellers, wouldn't we? Folks, by their nature, tends to resist change, even when such change is clearly for the better. It comes down to "Not in MY back yard", as I see it. REedevelopment is cool as long as it doesn't impact me ... I'm special, and everyone else should be required to accomodate my wishes. Sorry, but I think Eminent Domain is a valuable civic tool. Of course it can be abused, but diligent controls can and should be applied, with an eye toward overall fairness. The same folks who scream about the unfairness of being forced from their home or place of business are often the same folks who complain that the tax rate is too high, or that the schools are under-staffed and under-equipped, or that better roads and better policing ar3e called for. The only way to move on is to move on. That's democracy.

How about a tyranny of the person who bought and paid for it, in the entirely reasonable expectation of himself and his heirs enjoying the private, peaceable and exclusive thereof? Preemption of property rights has much in common with abrogation of contract, in which situation business cannot long operate.

I notice the use above of phrases like "Compensation should be just. . ." and ". . . care should be taken. . .".

I gotchya, roger, it is a difficult question, and easy to answer only if it isn't one's self directly impacted. Determing what is just and equitable can be highly problematic. As a Town Board Menber and County Board Member, I've been involved in such discussions ... hell, call 'em what they are; DIVISIVE ARGUMENTS. Every individual situation is just that, an individual situation ... generalities generally don't apply Locally, we have a "Situation" in progress. Not commercial development, but rather a re-routing of a road, the re-positioning of a bridge, and the pre-emption of some privately owned land to accomodate the works. The land involved has been in that family's hands for over a century, naturally, they feel strongly about it. On the other hand, terrain and natural water flow cause the section of road which currently skirts their land to be washed out every few years, at considerable expense and inconvenience to The Township. When that particular bridge washes out, as it has done six times in the last 75 years, most recently this spring, a sizeable section of the county is effectively cut off from eastward travel untill reconstruction can be accomplished. The affected residents have to drive a circuitous route of nearly 40 miles to get to the town just 11 miles from them. A hundred some years ago, the great-grandparents of the current property owner redirected a natural stream and sited their house in what had been the original watershed, causing the problem. Is it right to keep on coping with the problem which that caused, or is it right to remedy the problem? As a local taxpayer, I can think of lots of things on which the several hundred thousand dollars now committed to repairing the recent washout might better be spent. The house in question is a magnificent example of The American Farm House, but its in the wrong place. Even fifty years ago, the repairs to the road were vastly cheaper, but today, with environnmental regulations and Department of Transportation requirements, you can't just bulldoze gravel into the gully and wait for the next flood.

Last evening there was a primetime television news story on this very subject. Who wouldn't sympathize with a respectable older couple having their old home taken by a town so that an upscale development generating higher taxes could be built? A small businessman driven out of a business that has existed for many years, so that the neighborhood could be redeveloped, again justified by the need to increase tax revenues. Emotional stuff that certainly seems unjust.

After all, the sanctity of personal property was one of the foundamental values driving our war for national independence. The term property occurs again and again in the thoughts and papers of the Founding Fathers. Slavery itself, the most divisive issue in our history, was a problem because humans were regarded as property. The fear that private property might be seized, taken without due process, compensation, or reason was a powerful argument for the protection afforded by the Bill of Rights. What does the Constitution say on the matter?

The "Taking Clause" is found in the Fifth Amendment and the relevant portion reads, "No person shall … be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation." The elements for a government to exercise eminent domain are that the taking must be (a) with due process of law, (b) for a public use, and (c) with just compensation.

"Due process of law", here that means that the taking not be arbitrary. There is a continual balancing process weighing the rights of the individual against the needs of the whole community. Neither is absolute. The legislative body representing the citizens and acting on behalf of the community determines community "needs" and priorities. Communities require roads, water and sewage systems, public safety organizations, and a tax base sufficient to provide those benefits. Land use plans are an accepted means of guiding development for the benefit of the entire citizenry. Slum neighborhoods may be home to their inhabitants, but they also are breeding grounds for crime, disease and economic decay. The individual is afforded the right to protest before the legislative body authorizing the taking, though such protests are seldom successful in overturning a land use plan that has been made ripe by open public debate. The Supreme Court has repeatedly affirmed the constitutionality of government to plan, and effectuate land use by eminent domain.

What does "for a public use" mean? Taking property to build a dam, a public highway, or a new police station are all clearly for "public use". The courts have repeatedly determined that almost anything that a legislative body considers a "public use" … is a public use. To demolish ten square blocks of tenements to erect a new convention center, or sports stadium, is a public use. To take a mile, or a hundred miles of shoreline, to preserve the natural environment, is a public use. To prohibit construction on a marshland, thus depriving the property owner of realizing potential profits, is a public use. Here is one that some might find even more outrageous; the State of Hawaii passed a law intended to break up ownership of land going back to the days before Hawaii became a State. The law said that people, who held leases within parcels of greater than five acres might apply to a land board, and, with the State's approval, force the owner to sell them the land. The Supreme Court ruled that Hawaii's law was Constitutional, and was a legitimate "public use". Sounds strange, but when you read Justice O'Connor's majority opinion, you just might change your mind.

"Just compensation" is the kicker. The property owner has an idea of what value they put on the property, but that is almost certainly going to be far greater than what others might regard as "just compensation". To the rancher whose family has worked the land for a hundred years, where the ground is sanctified by generations of ancestors buried in that soil, no amount of money is enough. The market price for similar property is sometimes used to determine "just compensation", but governments seldom want to pay so much of their taxpayers money when the "public use" may actually reduce the tax base. Just compensation can be the amount the property is assessed for on the tax rolls, which is usually far under the market value. Most often an impartial board arrives at the compensation after public hearings. My family once had to give up some fine land, and a gold mine that was just beginning to show a small profit so that a dam could be constructed. The new lake's purpose was to provide sportsmen a place to fish. Were we given "just compensation"? Well, I suppose that depends upon whose making the determination, doesn't it?

Balancing the rights of the individual against the "needs" of the community isn't easy. The way we protect our individual rights is to be involved in determining what our community is, and will be. Those legislatores, or councilpersons, or whatever, are your elected representatives. When we elect them, we give over into their hands significant control over our individual lives. For years we may hardly notice the policies, budget, and priorities followed by our leaders, but ultimately all the chickens come home to roost.

I would rather agree with Roger, if such trends as BANANA ("build absolutely nothing anywhere near anything") and NOPE ("not on the planet Earth") did not exist and were not widely spread among private homeowners. Of course, I insist that compensation should be adequate, and it should include not only the market price of realty, but moving expenses and inconvenience compensation as well.

timber- In your example, where the development in question is a road, and there are good engineering reasons to build it in one place rather than another, to me the overriding concern is for the community interests.

If the land were wanted for a shopping center, or a condo development, that would be a horse of another color.

To look at the flip side of this, I don't know if any of you know the Northern State Parkway on Long Island. The road, an west/east one, is straight as an arrow for a good part of Nassau County, All of a sudden, inexpicably, it dips southward for a number of miles only to later veer northward again, where it again maintains its straight west/east course.

I had always wondered about that, because it really made no sense, and obliged people who lived on the eastern section of the parkway to drive many miles out of their way. then one day I learned the story behind the parkway.

Seems that if the road was constructed in a straight arrow fashion for all of its course, it would have been constructed plunk in the middle of gold coast country, where multimillionaires had their estates. Now THAT couldn't happen, and the people from that area put pressure to bear on the politicians so that the parkway would not go through THEIR land.

I am sure that a many more "regular" folks were disposessed to preserve the comfort of the multimillionaires. Even today, when most of the estates have been broken up and replaced by luxury houses, people still have to slowly snake their way through the extra, and unnecessary mileage!

Link to Northern State Parkway

Pheonix


I agree. It reminds me of a western where the villian holds a gun to the miners head and says sign the lease.

I've driven the NSP ... I kbnow what you mrean, Phoenix. But, where do, how do, you draw the line of "The Public Good"? The difficulty there assures perpetual dispute. While engimeering reality may indicate a particular most suitable route for a road or placement of a nridge, economic reality may well indicate the most equitable and generally beneficial use to which a particular property may be put calls for its assumption of and redevelopment by the local governmental entity. Of course, I realize that's precisely where much controversy arises, and that it provides fertile ground for nefarious, illicit scheming. However, if there is any flaw in "The System". it is, IMO, in that by and large "The System" is allowed to proceed more or less as it wishes. Folks in general (exempting, of course, the conscientious sorts here represented) are indifferent to politics untill such point at which politics become personally inconvenient or otherwise offensive. Natio0nal Politics are of course important, but far too few folks take active, effective interest in local politics. Who may or may not be President has, 9in a practical sense, less impact on one's day-to-day lifew than does who may or may not be mayor of one's city, or Chairman of one's Town Highway Board or member of one's School Board. As far as I'm concerned, there's nothibg at all wrong with the concept of Emminent Domain ... the pronlem lies in the pork, graft and corruption which public indifference fosters in government in general, the way I see i whether the regulatory agency involved is one's Condo Association or one's State Legislature or City Administration.

Timber- That's it, in a nutshell. My husband and I have a standing joke. I am forever bewailing the way public areas are engineered in my area. For instance, there is a spot in Tampa where two major highways intersect. It is "lovingly" known as "malfunction junction". Whenever I see public areas being built improperly, and obviously without foresight or acceptable planning, I will look at my husband and say, "I wonder whose brother-in- law got that contract!

An interesting questionand an even more interesting and infornative dialogue. Particular thanks to Phoenix, Asherman, and Timber for improving my own understanding.

The use of Emminent Doamin to take private property is increasingly abused. Yes, there is justification for the principle to exist in law and there are many valid "public" needs. Using Emminent Domain to take private property with the intent to turning that property over to another private entity should however, be against the law. The tactic is becoming more and more common and has become a simple way for corporations to avoid buying the land on the open market. Instead, they get the government to seize the land which is usually then handed over to them for nothing (or almost nothing).

The land owner gets shafted on what they are paid for their property and the government ends up subsidizing the corporation with a land grant. The only "winners" in these types of cases are the business owners. The Founding Fathers would not be pleased with this abuse of government authority. It was not what they intended.