Eminent Domain Essay Example for Free

Eminent Domain Essay The power of eminent domain is succinctly provided under the U. S. Constitution, specifically in the Fifth Amendment which in part provides, â€Å". . . nor shall private property be taken for public use, without just compensation† (U. S. Constitution, Fifth Amendment). The power of eminent domain is one of the attributes of sovereignty. This being the case, it can still be exercised even without a constitutional provision to that effect [Boom Co. V. Patterson, 98 U. S. 403 (1878)]. Historically, the power of eminent domain has been employed by the American colonies for public projects like roads and bridges (Oxford Companion, 2005). Originally, the power was considered to be applicable only to the federal government by virtue of the Fifth Amendment. â€Å"The power of eminent domain of state governments was unrestrained by any federal authority† {Green v. Frazier, 253 U. S. 233 (1920)]. â€Å"The just compensation provision of the Fifth Amendment did not apply to the States, and at first the contention that the due process clause of the Fourteenth Amendment afforded property owners the same measure of protection against the States as the Fifth Amendment did against the Federal Government was rejected† (Find Law web site, n. . ). However, with the inclusion of the Due Process clause or the Fourteenth Amendment, the power applied to the states in so far as the just compensation requirement as an element of due process as the Supreme Court ruled in the case of Chicago, Burlington Quincy Railroad v. Chicago (1897) (Oxford Companion, 2005). Except for North Carolina which exercises the power by virtue of a statutory authority, the other state governments derive theirs from their respective constitutions (West’s Encyclopedia of American Law, 1998). For the power of eminent domain to be validly exercised, the following requisites or elements must concur and be proven, namely, that the property being taken is private property; there must be ‘taking;’ the taking must be for public use; and, there must be just compensation (West’s Encyclopedia of American Law, 1998). The first element, private property refers to â€Å"land as well as fixtures, leases, options, stocks, and other items† (West’s Encyclopedia of American Law, 1998). Property rights such as water rights and right to reasonable use of the space above one’s property may also fall within the purview of private property (West’s Encyclopedia of American Law, 1998). The second element, ‘taking’ means â€Å"the taking of physical property, or a portion thereof, as well as the taking of property by reducing its value† (West’s Encyclopedia of American Law, 1998). There is compensation when the property is taken or its use is extensively restricted that it amounts to confiscation. For instance, a highway was constructed over the waterfront to inland property; the owner of that property must be paid considering that he lost his right to use the waterfront (West’s Encyclopedia of American Law, 1998). Also when airplane flights are low enough to deprive the owner of the private property below of his reasonable use of the space above his property must also be compensated as this amount to taking. The concept of ‘taking’ under the power of eminent domain should not be confused with the regulatory takings under the police power of the State. The power of eminent domain is also called the Takings clause. The difference is that in the exercise of the power of eminent domain, the ‘taking’ is for public use while on the other hand, the ‘taking’ in the exercise of police power is for purposes of regulating that property as it is â€Å"detrimental to public interest† (U. S. Constitution Annotated, n. d. ). The ‘taking’ in the exercise of police power is for the common welfare and is usually in the health and safety regulations (U. S. Constitution Annotated, n. d. ). The third element is ‘public use. It is required that the property is taken for the use and benefit of the public and not specific persons. The determination of whether a specific use is public or not rests upon the courts and is considered a question of fact. However, if there is a law which specifies the public use for which it shall be devoted, â€Å"courts will defer to legislative intent† (West’s Encyclopedia of American Law, 1998). In the determination of ‘public use’ the courts inquire into the fact that the property would be used by â€Å"broad segment of the general public† (West’s Encyclopedia of American Law, 1998). Through the years the Supreme Court in its judicial pronouncements, has expanded the concept of public use as to include â€Å"trade centers, municipal civic centers, and airport expansions† (West’s Encyclopedia of American Law, 1998). In 1954, public use even encompassed beautification purposes of the community. In the case of Berman v. Parker, the Court declared that the clearing of the slums is deemed as public use. The Court reviewed the plan of District of Columbia to raze properties which are partly blighted so that a department store can be erected to be managed by a private entity. The Supreme Court upheld the decision of District Columbia and ruled that it is within the prerogative of the legislative body to determine which property can be subject to the ‘taking’ for aesthetic considerations (348 U. S. 26). â€Å"Subject to specific constitutional limitations, the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation enacted in the exercise of the police power; and this principle admits of no exception merely because the power of eminent domain is involved† [Berman v. Parker 348 U. S. 26 (1954)]. In support of the legislative body, the Court further ruled that it is within the legislature’s power to address the issues of blighted areas of the community. â€Å"Redevelopment of an entire area under a balanced integrated plan so as to include not only new homes but also schools, churches, parks, streets, and shopping centers is plainly relevant to the maintenance of the desired housing standards and therefore within congressional power† [Berman v. Parker 348 U. S. 26 (1954)]. Traditionally, the concept of public use was applied in cases which involved supplying of water, electricity, transportation, roads and bridges and the like but due to the expansion of its scope through the years, a definitive determination of its scope is difficult. Defining the scope is basically one of legislative pronouncement directed to the purposes of government, incapable of abstract or historical definition [Berman v. Parker 348 U. S. 26 (1954)]. In a recent case of Hawaii Housing Authority v.  Midkiff (1984), at issue was the Land Reform Act of 1967 which provided for â€Å"a land condemnation scheme† in which title over the real property is passed from the owner-lessor to the lessees to re-distribute land and â€Å"reduce concentration of land ownership† [Hawaii Housing Authority v. Midkiff 467 U. S. 229 (1984)]. It allowed lessees who reside in tracts of land with at least five acres of land area to request for condemnation from the Hawaii Housing Authority. A hearing would be ordered to determine if the condemnation is for public use [Hawaii Housing Authority v. Midkiff 467 U. S. 229 (1984)]. The rationale in the transfer of ownership is found in the preservation of a free market. The proposition proceeds from a realization that concentration of land in the hands of the few prevented the â€Å"free market in real estate† and therefore its preservation is deemed a public benefit [Hawaii Housing Authority v. Midkiff 467 U. S. 229 (1984)]. The allowance of these takings for reconveyance of land is allowed even by the U. S. Supreme Court based on the idea that the new owners will spur more effective uses to the land and thereby create more revenues in the form of taxes for the government. The last element of the power of eminent domain is just compensation. The measure of just compensation or the amount to be paid to the owner of the property condemned or expropriated is based on the fair market value (West’s Encyclopedia of American Law, 1998). It is defined as â€Å"the price that could have reasonably resulted from negotiations between an owner who was willing to sell and a purchaser who desired to buy (West’s Encyclopedia of American Law, 1998). This value is determined by the uses to which the property can be devoted at the time of the taking. Factors such as â€Å"history and general character of the area and the adaptability of the land for future buildings† are also considered (West’s Encyclopedia of American Law, 1998). The Court, in the case of Monongahela Navigation Co. v. United States, explained that the value of just compensation should be based on the owner’s loss being placed in the best financial position as if the property had not been expropriated rather than the value of gain for the condemnor (Monongahela Navigation Co. v. United States, 148 U. S. 312). The compensation should be paid in cash, and the amount is determined as of the date title vests in the condemnor. Interest is paid on the award until the date of payment† (West’s Encyclopedia of American Law, 1998). The proceedings usually vary in the different states. Basically, it involves two phases, i. e. condemnation of the property and the determination of just compensation. During the pendency of the proceedings, the owner of the condemned property may continue in using his property provided that there is no substantial alteration of the same is made (West’s Encyclopedia of American Law, 1998). In all proceedings, the owner must be afforded due process. This means that he must be duly notified and be given an opportunity to be heard, i. e. present his evidence and his own witnesses. He must be given also the opportunity to dispute the compensation determined if he does not agree with it. â€Å"The owner of the land has an automatic right to appeal† (West’s Encyclopedia of American Law, 1998). There are also cases when the owner of the land is the party that commences the proceedings. This is called inverse condemnation proceedings. This type of proceedings is usually resorted to for environmental concerns when the government has encroached on the interest of the owner of the land without paying him the just compensation such as when the government â€Å"floods a farmers field or pollutes a stream crossing private land† (West’s Encyclopedia of American Law, 1998). With the disappearance of the traditional federal constitutional restraints on the exercise of the power of eminent domain, has the ‘public use’ requirement metamorphosed into public abuse. What therefore are its ramifications and how can these be resolved. Discussion and Analysis The power of eminent domain had been recognized by the American judiciary as a ‘despotic’ power, that notwithstanding, it also recognized that it is an inherent power necessary for it to subsist. Traditionally, the Takings clause was used only in clear situations necessitating public use projects where public necessity has been shown. The power has been exercised for bridges, roads and the like. As it developed, it was also exercised in relation to development of blighted areas because the removal of slum areas is considered as for a public purpose. The Berman case has to a certain extent modified ‘public use’ into ‘public purpose. ’ In fact it has passed on judicial responsibility of scrutiny to the legislative body that once the object is within its authority, the right to exercise the power becomes clear. As if this was not enough, the concept of ‘public use’ was completely eroded in the case of Kelo, et al. v. City of New London, Connecticut which was decided by the Supreme Court in 2005 (545 U. S. 4). A large-scale development plan was approved by the New London in order to spur economic development to an economically distressed city in terms of jobs, taxes and revenues. The residential neighborhood which is not blighted is supposed to be replaced by a research center, office space, conference hotel and the like. Portions of the project will be leased out by the private developers who will build the entire project. The city development agent was able to purchase private lands from the consenting owners. However, a number of the other residents refused to sell out and contested the condemnation proceedings initiated against their properties. The property owners filed an appeal before the Supreme Court after the having lost in the Connecticut Supreme Court [Kelo, et al. v.  City of New London, 545 U. S. 4 (2005)]. The U. S. Supreme Court ruled, â€Å"’public use’ should not be read literally. It has embraced the broader and more natural interpretation of public use as public purpose. Promoting economic development is a traditional and long-accepted governmental function. Therefore, the condemnations were for a public purpose and met the public use requirement† [Kelo, et al. v. City of New London, 545 U. S. 4 (2005)]. The rationale, for which the Bill of Rights in the Constitution was included, is for the purpose of protecting the citizenry from the vast powers of the government. These are safeguards to ensure individuals from possible abuses. Therefore any issue of doubt should be interpreted in favor of the individual and strictly against the government. Protecting property rights is one of the hallmarks of democracy. With the recent decision of the Supreme Court, every property now lies under the ghost of condemnation for the benefit of private persons. The requisites provided by the Constitution for the exercise of the power of eminent domain must be strictly adhered to and should not be interpreted loosely as to accommodate expanded meanings. It may be argued that redevelopment would bring benefits to the community and therefore the public as whole; still this is done at the expense of depriving and even curtailing the property rights of property owners who refuse to surrender them in the guise of a reasonable and lawful exercise of the power of eminent domain. Again, it may be argued further that these property owners would nevertheless receive just compensation. However, the proceedings and the determination of the amount of just compensation may be tedious. The owner who may have issues as to the amount already determined may have scarce resources to raise these issues in a long and expensive legal battle in court as against vast resources of government and legal machinery. In general, with an expansive justification to the taking, the peaceful possession and ownership of a property owner is disturbed. Analysis of states legislations reveal that majority of the laws contain justification for the exercise of the power of eminent domain in cases where there is a determination of blighted areas which pose unsanitary and unsafe conditions. In these cases, the necessity for public use is clearly established. In the case of Kelo, no such necessity exists and the higher risk of redevelopment authorities to take advantage of such ruling is not remote. The ruling in the Kelo case signifies the utter lack of creativity and ingenuity on the part of the state authorities to conceive and plan ways and means to spur economic redevelopment other than by taking private properties from its owners. The state officials/government seemed to have acted as middleman in procuring property for the private individuals. One of the city redevelopment directors has been quoted as saying, â€Å"city decides which properties to condemn based on whether someone in the private sector wants the land and has a project for it† (Staley, 2003). Clearly, it is the private interests that push redevelopment. The issue of whether this would benefit the public would remain to be seen and while waiting for this to materialize, the property owners were already deprived of the properties they have acquired and established residence in through time. Economic redevelopment is basically a function and responsibility of government but by approving redevelopment plans of private contractors and the acquisition of private properties under the guise of the power of eminent domain, government has in effect contracted out its function and responsibility in spurring economic development within their localities in favor of private entities. On the whole, the exercise of the power of eminent domain under the expansive meaning of ‘public use’ sends a wrong signal to private individuals. It is every American’s dream to own and establish a family home in a community where their children can grow up. In fact laws such as the Homeowners Protection Act have been enacted to support this and assist those who establish family residential homes. It is also every American’s dream to own real property so they toil and labor so that the fruits of their work can be invested for their security in the future. However, with the deplorable manner by which the power of eminent domain is now exercised, property rights are wrecked and city governments are on carte blanche as to which properties may be condemned as dictated by redevelopment companies whose only tool seems to be that. The Court in the Kelo case reverted to the States the function to impose restrictions and restraints in the exercise of the power of eminent domain. This may be interpreted as an abdication of the Court’s power to strike down the abusive manner in which the power of eminent domain was exercised. It is empowered by the Constitution under its judicial review power to declare whether an act of government officials have been executed beyond the mandated duties and functions. The Court is duty bound to ensure safeguards against government action.