eminent domain essay titles

The Initiative 07-0018 Eminent Domain Essay

Introduction, just compensation, economic arguments.

In law, eminent domain is the authority of the state to suitable private property for its own use without the owner’s permission. Governments most normally use the power of eminent domain when the attainment of real belongings is necessary for the achievement of a community scheme such as a road, and the possessor of the required property is reluctant to consult a price for its sale.

In many jurisdictions, the power of eminent domain is tempered with a right that just compensation be made for the appropriation.

The initiative 07-0018 Eminent Domain states the rules ad procedures of assumption of private property. It had been adopted in Sacramento – Secretary of State Debra Bowen today proclaimed that the proponents of a new proposal might begin collecting petition signatures for their measure.

Eminent Domain – Acquisition of owner-engaged residence, a constitutional amendment. Bars state and local administrations from using the renowned domain to obtain an owner-occupied dwelling, as defined, for transference to a private person or commerce entity. The initiative creates exemptions for public work or enhancement, public health and security defense, and crime avoidance. Summary of approximation by Legislative Analyst and Director of Finance of fiscal impact on state and local administration: The tool would likely not have an important fiscal collision on a state or local controls.

The Secretary of State’s tracking number for this measure is 1251, and the Attorney General’s tracking number is 07-0018.

The supporters for this measure, Christopher K. McKenzie, Susan Smartt, and Kenneth Willis, need to gather the signatures of 694,354 registered voters – the figure equal to 8% of the total votes shed for the head in the 2006 gubernatorial election – in order to succeed the gauge for the ballot. The proponents have 150 days to mingle petitions for this determination, meaning the signatures should be collected by December 3, 2007.

Fair value is usually viewed to be the fair market charge – that is, the uppermost price someone would pay for the possessions were it in the hands of an eager vendor. The date upon which the value is charged will vary, depending upon the leading law. If the parties do not concur on the value, they will normally utilize evaluators to assist in the cooperation procedure. If the case is litigated, both sides will ordinarily present expert testimony from appraisers as to the fair market value of the property.

At times, fair charge involves more than the price of an item or possessions of real estate. If a business is acting from the censured real domain, the possessor is normally enabled to recompense for the loss or disturbance of the industry resulting from the disapproval. In a minority of influences, the owner may also be entitled to recompense for the defeat of “goodwill,” the value of the business in surplus of fair market value due to such issues as its position, status, or good consumer relations. If the business does not own the ground but leases the bases from which it functions, it would customarily be entitled to reimbursement for the value of its lease, for any matches it has installed in the premises, and for any loss or diminishment of value in the industry.

Ordinarily, a government can exercise eminent domain only if its taking will be for a “public use” – which may be widely defined along the lines of public “safety, health, interest, or convenience.” Perhaps the most common example of “public use” is the taking of land to build or increase a public road or freeway. Public use could also include the taking of land to build a school or municipal building, for a public park, or to redevelop a “blighted” property or neighborhood.

First of all, it is necessary to mention that the taking of private property is a “public requirement of the tremendous type” that requires group action. For instance, the offered alteration would prevent small units such as community zoning commissions from managing private property handling. The alteration would engage larger payments, perhaps on the stage of county boards or particular courts of the petition.

Second, the private possessions would have to stay overseen by the community after they relocate.

Third, the motive for the transfer of private possessions would have to view the municipal notice rather than the attention of the confidential entity getting the belongings.

Moreover, placing the Hathcock amendments in the Constitution, the amendment also would necessitate governments to offer recompense for implementing Eminent Domain of a quantity at least equal to 125 percent of a housing possessions’ fair market charge. Under this amendment, therefore, it would be more costly to acquire private possessions for confidential exploitation.

In recent terms, there has been rising anxiety about the method in which some states and units of administration implement their power of an eminent domain. Some governments occur tending to implement eminent domain for the advantage of developers or profitable activities, on the basis that anything that augments the value of a given tract of land is an adequate public use. Detractors react that this is ridiculous and that there are few properties, no matter how fashionable, which could not be made more precious if enhanced in a dissimilar way. They also note that if a developer is unable to acquire the possessions on the open market, it is unlikely that the landlords will truly be offered the charge of the belongings through censure happenings. The lawmaking reply to that point is that the law of eminent domain arose from the knowledge that some possessions proprietors are reluctant to discuss a sensible sale price, and such awkwardness should not provide a foundation to extract an above-market price or to avoid the conclusion of a public project.

Followers argue that captures of private possessions are necessary to the development of communities when business costs prevent private parties from concurring on the most competent use of the property. Challengers point out that, over a period of 200 years, American city-inhabitants formed large land groupings and major arrangements without the coercive authority of an eminent domain. Critics also point out that even triumphant redevelopment revitalizes only restricted areas, leaving other city regions in decline. Moreover, with the ongoing migration of the past half-century from cities to suburbs, it is inevitable that cities lose population and jobs, resulting in blighted areas that cannot be revived by taking more low- and moderate-cost city housing, thus driving more people out to the suburbs.

The controversy is further ardent by the courts classifying the “just recompense” assured by the Constitution so narrowly that relocated homeowners and trades are not fully recompensed for their provable economic losses, which are on occasion deemed non-compensable. This is chiefly contentious in cases where industry properties are taken, the proprietors are not remunerated for lost industry, and the captured land is turned over to another industry at no cost.

As for the legacy of the law project, it is necessary to emphasize that anyone is claimed to improve the legislative system of any country by defending the rights of the people who need these rights to be defended. But the matter is any law project can not be perfect, and it always happens so that some hollows are found in law projects, and thus the law is used for the personal benefits of the informed individuals. Thus, the corporate raid is flourishing. In spite of it is widely recognized in lots of states, by lots of governments, it is widely used by criminal groupings in order to capture the most suitable or comfortable offices or lands.

To use the authority of the eminent domain, the condemner must be authorized, by statute or regulation, to take the possessions for a precise public reason. The condemner must also try to buy the property from the property owner by good-faith negotiation. The condemner must make an unqualified offer to buy. Only after the condemner and the property owner cannot agree may the condemner bring the matter to the local circuit court by filing a Petition in Eminent Domain.

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Cohen, Charles E. “Eminent Domain after Kelo V. City of New London: An Argument for Banning Economic Development Takings.” Harvard Journal of Law & Public Policy 29.2 (2006): 491

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The Legal Conception of “Eminent Domain” and Territorial Rights

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M. Blake Wilson 2

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Expropriation

Eminent domain refers to the power of the state to convert private property to public ownership and use through a forced or nonvoluntary legal process. Typically, the state compensates private owners based upon the fair market value of the property. In some situations, the state uses eminent domain to protect its historical and environmental interests because property owners have special social obligations that govern their property rights. These obligations vary from jurisdiction to jurisdiction, reflecting traditional and cultural attitudes towards owners’ rights as well their duties to their communities. Eminent domain may also describe the regulatory processes which does not result in a transfer of ownership, but merely limits a private owner’s opportunities to exploit their property for personal or corporate profit.

Dominium eminens was first described by Hugo Grotius in De Jure Belli et Pacis in 1625. The power of the state to take private...

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Wilson, M.B. (2021). The Legal Conception of “Eminent Domain” and Territorial Rights. In: Kocsis, M. (eds) Global Encyclopedia of Territorial Rights. Springer, Cham. https://doi.org/10.1007/978-3-319-68846-6_57-1

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Legal Dictionary

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Eminent Domain

The Fifth Amendment to the U.S. Constitution forbids the taking of private property for public use without “just compensation.” The authority of Federal, state, and local governments to take private property for public use, providing just compensation to the owner, is called “eminent domain.” Real estate, or land, is not the only property subject to eminent domain law, but water and air rights as well. To explore this concept, consider the following eminent domain definition.

Definition of Eminent Domain

The power of the state, by virtue of its sovereign power over the lands within its jurisdiction , to seize private property for public use, with payment of “just compensation” to the owner(s).

1625 Discussed in the legal discourse “De Jure Belli et Pacis,” by Dutch professor of law Hugo Grotius, as dominium eminens (Latin: supreme lordship )

History of Eminent Domain Law

The notion of eminent domain has existed since ancient times, as documented in the Bible when Samaria’s King Ahab offered compensation to Naboth for his vineyard. Early European nobility commonly took what land they wanted, until 1789, when France publicly recognized the rights of property owners to be compensated for such property seizures.

The practice of eminent domain came to the American colonies as commonly held British law. While drafting the Constitution, conflicting ideas about this practice surfaced, a compromise of which resulted in the final clause to the Fifth Amendment, specifying that compensation was to be made for property seized for public use.

In modern times, eminent domain law is widely used by federal and state governments, and has been upheld by the Supreme Court. Eminent domain law facilitates the creation and upkeep of such necessary infrastructure as roads and highways, parks, and public buildings, as well as water, power, and gas lines. Additionally, eminent domain may be used for urban renewal, replacement of deteriorated housing with new low-cost housing, and beautification of public use areas.

A 1954 Supreme Court decision in Berman v. Parker upheld that it is within the government’s power to use eminent domain to ensure the community is not only healthy, clean, and well patrolled, but that it is beautiful, spacious, and well balanced. In other words, that the term “public use” could properly be construed as that which is in the public’s interest, or for the public’s welfare.

To further the effectiveness of the eminent domain power, the Supreme Court decided, in the 2005 case of Kelo v. City of New London , that the transferring of land from one private owner to another private owner for the purpose of economic development is a permissible definition of “public use.”

Eminent Domain Pros and Cons

Eminent domain has been a topic of disparate opinions since before it was set down in writing in the Constitution. Indeed, there are both pros and cons to the practice. For example, eminent domain was used in the 1950s redevelopment of an impoverished neighborhood in San Francisco. While the ramshackle homes were replaced with cosmopolitan hotels and other modern edifices, more than 4,000 poverty-stricken denizens, and over 700 businesses were evicted, the buildings demolished and removed.

While it is usually clear that the use of eminent domain to build roads, improve utilities, and revitalize cities, many property owners fear they will not be compensated fully for the seizure of their land. Additionally, as these projects are often paid for with tax dollars, many taxpayers feel that the requirement of paying for land acquired through eminent domain places a monetary burden too great for the perceived benefit of the project.

Eminent Domain Examples

Eminent domain has indeed been used to the benefit of the community in which it has been exercised, but examples of over-reaching or poor planning abound, sparking further controversy. Below are several highly publicized examples of eminent domain cases.

Kelo v. City of New London

The plan to raze the Fort Trumbull district of New London, Connecticut sparked the 2005 Supreme Court ruling that more broadly defined the scope of eminent domain. The plan was for the revitalization of the neighborhood to attract large companies to the area, bringing with them much-needed jobs. Indeed, Pfizer Pharmaceutical expanded to New London, and an upscale hotel, athletic center, conference center, and office park were planned to further update the area. Unfortunately, the massive pharmaceutical company packed up and left town a mere five years after the ruling, taking with it its more than 1,000 jobs. The 70-acre stretch of land on the Thames River that is Fort Trumbull remains mostly empty, the plan for more than 100 rental condominiums to take the place of the previously planned buildings has been held up in a contract dispute ever since.

Julia Lemon v. Phoebe Putney Memorial Hospital

In 2005, the state of Georgia, on behalf of Phoebe Putney Memorial Hospital, attempted to seize a property for the building of a daycare center to serve Georgia’s largest hospital. On the property stood a home owned by Julie Montgomery, and rented by 93-year old Julia Lemon. The hospital offered owner Montgomery the “fair market value” of the property at about $50,000, but she was loathe to displace her elderly tenant, who had lived there for 26 years. The Dougherty County Super Court issued a 2006 ruling on the matter requiring the hospital to pay Montgomery $200,000 for her property, as well as paying $51,000 to Lemon to aid in her relocation. This case emphasizes that the use of eminent domain cannot be all-reaching, but should examine real-life issues when considering property seizures.

Bauder v. Delaware County

Scott and Kathy Bauder fought Delaware County Ohio’s eminent domain grab at the land they had farmed for a quarter of a century, declining the county’s offer of a mere $450,000 for a 10-acre stretch of land that split their holdings. The land was to be used to extend Sawmill Parkway into the Delaware city limits, but the Bauder’s attorneys argued that the area already has adequate roadways.

The jury in the 2013 hearing found that the land was worth a great deal more than the county had offered the Bauders, though not the $1.2 million suggested by a privately employed appraiser. In the end, the county was ordered to pay $850,000 for the land, and an additional $100,000 to cover the Bauder’s legal fees. This decision is typical in such cases, where juries often split the difference between the estimated land values.

The Eminent Domain Appraisal and Fair Market Value

When appropriating property through eminent domain, the government must pay the owner “fair market value” for the property. Fair market value is generally considered to be the amount a buyer and seller are likely agree to if that property was sold on a particular day. For example, the highest amount the seller and a buyer might reasonably agree to on a particular day is considered fair.

Determining fair market value requires an eminent domain appraisal , which is a valuation more than one real estate appraiser. Competent real estate appraisers experienced in eminent domain valuation are often hired by the parties’ eminent domain attorneys. Real estate appraisers often have experience specific to particular home styles and regions, making it important to hire an appraiser experienced in eminent domain cases in the area in which the property lies.

What is Eminent Domain Compensation

Property owners often have questions about eminent domain compensation in cases where only part of a property is seized, as well as whether payment is made for improvements to, or businesses on, the property or businesses, as well as who is entitled to eminent domain compensation in cases where the property has a tenant.

Compensation for Improvements

The law entitles property owners to compensation for improvements made to the property in addition to its land value. Such improvements may include buildings, fencing, paved roads, and even machinery. In many jurisdictions, valuation of improvements is to take into consideration the particular improvement as it relates to the property’s ongoing value, rather than salvage value or replacement cost.

Compensation for Business Losses

In most states, property owners are not entitled to compensation for business losses as a result of the property being seized in eminent domain actions. California, however, allows for compensation for loss of business “goodwill,” or the value of the sustainable income that results from the business’s location, reputation, and other issues that ensure continued patronage.

Compensation for Partial Property Seizure

In many eminent domain cases, only a portion of the property is taken, such as the strip of land needed to widen a street. In these instances, the entire property is not seized, but compensation is made for the actual part taken, as well as for the damage to the remaining property. Such damages , called “severance damages,” may occur when the strip of land taken, such as for a roadway or utility easement , splits a larger property, or when the portion taken somehow diminishes the value or usefulness of the remaining property. Severance damages may also be necessary to cover damages to a property caused by the actual construction project for which properties were seized.

Compensation for Rented Property

In the event a property seized under eminent domain is rented or leased, it may be required that both the property owner and the tenant be compensated. The valuation of compensation for rented property in such a case may differ depending on whether the lease or rental agreement contained a condemnation clause. In some eminent domain cases, such a tenant may be entitled to receive a significant portion of eminent domain compensation made for the property.

Related Legal Terms and Issues

Condemnation Clause . A clause specifying what would occur if the leased property was taken by eminent domain. An effective condemnation clause should define partial and total condemnation, whether the lease agreement may be terminated, and by which party, and who is entitled to compensation for damages.
Replacement Cost . The amount required to replace an asset at its condition prior to the loss. Replacement cost often differs from the item’s market value, and does not deduct an amount for depreciation.
Salvage Value . The estimated value of a property, improvement, or other asset at the end of its useful life. Subtracting an asset’s salvage value from its cost provides the amount to be depreciated.

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The Pros and Cons of Eminent Domain

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The pros of eminent domain, the cons of eminent domain, case studies, alternative solutions.

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eminent domain

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Eminent domain refers to the power of the government to take private property and convert it into public use , referred to as a taking. The Fifth Amendment provides that the government may only exercise this power if they provide just compensation to the property owners. A taking may be the actual seizure of property by the government, or the taking may be in the form of a regulatory taking, which occurs when the government restricts a person’s use of their property to the point of it constituting a taking.

Just Compensation Requirement

The Fifth Amendment of the United States Constitution mandates that if the government takes private property for public use, the government must provide "just compensation." In K ohl v. United States, 91 U.S. 367 (1875) , the Supreme Court held that the government may seize property through the use of eminent domain, as long as it appropriates just compensation to the owner of the property. In Loretto v. Teleprompter Manhattan CATV Corp. 458 US 419 (1982) , the Supreme Court clarified that when the government engages in a taking and implements a permanent physical occupation of the property, it must provide the property owner with just compensation, even if the area is small and the government's use does not greatly affect the owner's economic interest.

Typically, a "just compensation" is determined by an appraisal of the property's fair market value. This means that any sentimental or other value held by the owner will not be considered in calculating compensation. Depending on the size and unique nature of the land, calculating the market value of property can be quite complex. Generally, one determines the fair market value by looking at the sales of similar property to that being taken. In many circumstances, there may not be similar sales under current market conditions to compare with. The property may have some complex considerations such as leasing value that must be considered. This all can make the valuations for fair market value challenging. For more information on calculating just compensation, see this LII article .

Public Use Requirement

Courts broadly interpret the Fifth Amendment to allow the government to seize property if doing so will increase the general public welfare. In Kelo v. City of New London, 545 U.S. 469 (2005) , the Supreme Court allowed a taking when the government used eminent domain to seize private property to facilitate a private development. The Court considered the taking to be a public use because the community would enjoy the furthering of economic development. Further, the Kelo court determined that a governmental claim of eminent domain is justified if the seizure is rationally related to a conceivable public purpose.

The Kelo decision significantly broadened the government's takings power. This caused significant controversy, and states were quick to act to quell concerns about this expansion of power. In response to Kelo , many states have passed laws which have restricted governments' takings abilities (such as implementing a stricter definition of what constitutes a "public use," requiring heightened levels of scrutiny to justify an action categorized as a taking, etc).

Types of Takings

Many types of government action infringe on private property rights. Accordingly, the Fifth Amendment's compensation requirement is not limited to government seizures of real property. Instead, it extends to all kinds of tangible and intangible property, including but not limited to easements , personal property , contract rights , and trade secrets .

In United States v. Dickinson, 331 U.S. 745 (1947) , the Supreme Court held that even if the government does not physically seize private property, the action is still a taking "when inroads are made upon an owner’s use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time.”

Land Use Regulation

Many regulatory takings disputes arise in the context of land use regulation. Agins v. City of Tiburon, 447 U.S. 255 (1980) , the Supreme Court held that it there is not a requirement for government compensation where such regulations "substantially advance legitimate governmental interests," and as long as the regulations do not prevent a property owner from making “economically viable use of his land.”

Public Purpose

See Public Use Requirement above - Courts broadly interpret the Fifth Amendment to allow the government to seize property if doing so will increase the general public welfare. In Kelo v. City of New London, 545 U.S. 469 (2005) , the Supreme Court allowed a taking when the government used eminent domain to seize private property to facilitate a private development. The Court considered the taking to be a public use because the community would enjoy the furthering of economic development. Further, the Kelo court determined that a governmental claim of eminent domain is justified if the seizure is rationally related to a conceivable public purpose.

How Much Compensation is Just?

Generally, the government must pay the market value of seized property. There are, however, many exceptions. The government need not compensate a property owner for the portion of the property's value created by that government.

For example, in United States v. Fuller, 409 U.S. 488 (1973) , the Supreme Court held that when the federal government condemned a rancher's grazing land, it did not owe compensation for the portion of the land's value derived from its proximity to adjacent, federally owned grazing land.

When is a Regulation a Taking?

While often takings are obvious, some types of government regulations may be hard to classify as a taking or not. For example, if the government required a farmer to kill off its corn due to a spreading disease amongst corn, this arguably could be a taking of property through regulation. Sometimes, a government regulation infringes upon private property ownership to such an extent that the regulation can be considered a taking, thus requiring just compensation. The Supreme Court, over a series of regulatory takings cases, has developed a 4-part test to determine whether a regulation is considered to be a taking.

A government regulation is a taking when the government authorizes a permanent physical occupation of real/personal property
The regulation is a taking when the regulation causes the loss of all economically beneficial/productive uses of the land, unless the regulation is justified by background principles of property law/ nuisance law
Exaction – a requirement that the developer provides specified land, improvements, payments, or other benefits to the public to help offset the project’s impacts
If the government's action is a physical action, rather than a “regulatory invasion,” then the action is almost certainly a taking
The extent to which the regulation has interfered with the owner’s reasonable investment-backed expectations for the parcel as a whole
The regulation’s economic impact on the affected prop owner

Noxious Use

Even if a government regulation is deemed a taking, it still may be viewed as justified, as long as it meets the noxious use test, also known as the Mugler - Hadacheck test. Under this test, a regulation adopted under the police power to protect the public health, safety, or welfare is not a taking, even if the taking reduces the value of property.