Eminent Domain Essay ⋆ Essays on Controversial Topics ⋆ EssayEmpire

Eminent domain refers to the government taking private property without the owner’s permission for specified, legitimate purposes and just compensation. This entry explores various conceptualizations of eminent domain and its background and then discusses controversies surrounding its key components.

Related concepts to eminent domain exist in other countries with common law systems. In the United Kingdom, New Zealand, and the Republic of Ireland, a similar procedure is called compulsory purchase, and in Australia it is called resumption. In Canada and Louisiana, a concept similar to eminent domain is expropriation.

In the United States, eminent domain receives legal support from the Fifth Amendment to the U.S. Constitution, which reads, in part, “nor shall private property be taken for public use, without just compensation.” Eminent domain is often considered an inherent governmental power, even without legislation saying so. Governments, however, must use due process to appropriate the property, often taking private property through a condemnation proceeding. Government can take property only for public uses, and it must compensate the property owner. The courts usually defer to the legislative branch in deciding what a public use is.

In the United States, it is without controversy that governments possess an inherent power to exercise eminent domain but that due process must be followed beforehand. Experts conceptualize four kinds of property takings: complete, partial, temporary, and easements. A complete taking is a total and permanent taking of property, whereas a partial taking is a permanent taking of a portion of the owner’s property, such as land on one edge of the property. A temporary taking means the owner is compensated for temporary loss of the property, but the property eventually returns to the owner. An easement gives another entity access to the property, but the owner can continue to use the property if it does not interfere with the other entity’s use. An example of an easement is that a utility company can install power lines over a property; the property owner can continue to use the property under the power lines as long as he or she does not interfere with the utility’s service.

Contemporary controversies surrounding eminent domain revolve around what are legitimate public uses and what is fair compensation. The notion of a legitimate public use has changed dramatically over time, from a notion of universal availability, to a definite, direct public benefit, and more recently, to a potential, indirect public benefit. State governments have exercised eminent domain since the nation’s founding, but one of the first U.S. Supreme Court cases, Kohl et al. v. United States, 91 U.S. 367, was concerned with what is a legitimate public use. Decided in 1876, the Supreme Court concluded that the federal government could appropriate private property in Cincinnati, Ohio, to develop a building that would house a federal post office, courthouse, pension office, customhouse, and other federal government facilities. In this instance, the Court was concerned with the potential access of all Americans to these public properties.

Eventually, the focus of legitimate public use was less on universal access and more on the interest of the public. It became no longer necessary that everyone have access to the property but rather that everyone would benefit from the property. This change was sometimes characterized as arising from government’s police power, that government can legitimately secure the safety, health, and welfare of its citizens by maintaining public order. In Berman v. Parker, 348 U.S. 26, the U.S. Supreme Court considered whether the District of Columbia Redevelopment Land Agency could use its powers of eminent domain to take blighted property in Washington, D.C. The specific area subject to eminent domain proceedings was characterized as one in which “64.3 percent of the dwellings were beyond repair, 18.4 percent needed major repairs, only 17.3 percent were satisfactory,” and the Supreme Court noted that most had outdoor toilets, over 60 percent did not have baths, and over 80 percent did not have laundry facilities or central heating. In ruling that eminent domain proceedings were appropriate, the Supreme Court noted in this 1954 case, “Miserable and disreputable housing conditions may do more than spread disease and crime and immorality…. They may indeed make living an almost insufferable burden.”

Attempts to construe public use to an indefinite, indirect public one have recently dominated the legal and policy arenas. Notably, in the 2005 case Susette Kelo, et al. v. City of New London, Connecticut, et al., 545 U.S. 469, the U.S. Supreme Court decided a city could appropriate private property for a public purpose, even if that private property is turned over to private developers whose ultimate aims may or may not result in fulfilling a public purpose.

Rather than condemning the property to build a public facility as in the Kohl case, or condemning a building because of public health concerns as in the Berman case, the New London city government wanted to appropriate the private property and then sell it to real estate companies, who would then develop the property. Two public purposes were to result from this transaction: economic development and increases in tax revenue. The U.S. Supreme Court previously did hold that economic development is a public purpose for which condemnation proceedings are legitimate. An important difference in the Kelo case is that government was conveying the private property to a private developer, whose objectives only indirectly put the property to a public use. The public purpose that would be served would be economic development and an increase in tax revenue. Logically, the Kelo case stands for the proposition that government can legitimately force a family to convey their home to a private entity that promises but cannot guarantee economic development and consequent tax revenue.

Another reason the Kelo case is controversial is that the city government of New London used condemnation proceedings against homes that were not dilapidated but were in a working-class neighborhood that, by all accounts, was not blighted. Some members of the New London neighborhood had assented to purchase of their property by the City of New London, but other neighborhood residents had not. The city government condemned the holdouts’ properties, despite the lack of evidence that the neighborhood or homes were falling apart.

Not surprisingly, hostile responses to the Kelo case were swift and strong. The Property Rights Protection Act, passed by the U.S. House of Representatives in 2005, has since languished in the Senate. If it ever becomes law, it would prevent local governments from receiving economic development funds to use for eminent domain proceedings for private development. Across the United States, several state legislatures passed legislation to prevent governments from using the strategy of designating a home or neighborhood as “blighted” to condemn private property when the primary purpose is economic development.

The other important debate arises from just compensation. Typically a government must pay fair market value to the owner of the private property; eminent domain proceedings force market prices onto the property owner. Given that the owner of the private property is not willing to sell the property, often he or she will value the property higher than what he or she can receive on the market. Thus the property owner will believe an eminent domain proceeding does not provide full compensation. Taxpayers, the group that funds the local government’s purchase, will overpay for the property if they pay more than the market value. As a result, typically neither the private property owner nor the taxpayers receive fair treatment through eminent domain proceedings.

Eminent domain fundamentally raises questions about boundaries separating public and private actors. A key ingredient of a capitalist-oriented economy is private property. In the United States, the original intent of eminent domain was for situations when property would have the greater purpose of serving an entire community, and the U.S. Supreme Court was reluctant to permit government officials to take private property unless the use would benefit everyone. In contrast, today local governments can take private property from a private owner and convey the property to another private owner because the government anticipates the end result will be greater tax revenue, arguably a greater good. Ironically, in these situations the advantage gained by the new owner seems to have fallen out of the equation.

Bibliography:

Bell, Abraham and Gideon Parchomovsky. 2006. “The Uselessness of Public Use.” Columbia Law Review 106(6):1412-49.
Cohen, Charles E. 2006. “Eminent Domain after Kelo v. City of New London: An Argument for Banning Economic Development Takings.” Harvard Journal of Law & Public Policy 29(2):491-568.
Epstein, Richard. 2005. Takings: Private Property and the Power of Eminent Domain. Cambridge, MA: Harvard University Press.
Talley, Brent E. 2006. “Restraining Eminent Domain through Just Compensation: Kelo v. City of New London, 125 S. Ct. 2655 (2005).” Harvard Journal of Law & Public Policy 29(2):759-68.

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