Posted on 06/24/2005 6:53:25 AM PDT by jim_trent
Definition of Eminent Domain: The power of government to take private property for public use. The owner must receive just compensation, and must receive due process before the property is taken. Often referred to as “condemnation”, which is the act of exercising eminent domain.
It looks like the Supreme Court has officially confirmed what has been going on for many years (the World Trade Center was built on land that was acquired by eminent domain – and so was the Brooklyn Bridge). Public use now officially includes the creation of jobs or economic growth. Regardless of how you feel about that, lets get our facts straight. There has been a LOT of misinformation posted here about Eminent Domain and/or Condemnation.
I cannot speak about what went on 50, 100, or 1,000 years ago. However, as long as I have been involved in obtaining property for public works projects (about 12 years), these have been the rules that I have worked with and, in major respects, it is identical to the rules in all other states that I have been in contact with. The rules were codified in the 1950’s with the creation of the Interstate road system and have only been changed slightly since then. The people who have posted that they know someone who knows someone who had their land seized and were not paid anything for it either don’t know the true facts of the case or are lying.
1. There has to be a public finding by a LOCAL government body that land is needed for a project. There are public hearings (in every case I know of) before they decide. 2. There has to be “just compensation” paid for all property taken, including the land and all real property attached to it. That includes buildings, fences, outbuildings, crops, orchards, etc. 3. Just compensation is determined by an appraisal. What the property could be sold for today is the present value. Appraisals are done daily for a number of reasons (taxes, insurance, borrowing money, etc), not just for condemnations. The procedures are well established in the (private) industry. Check the yellow pages to see how many appraisers there are in your area. 4. An appraiser is hired by the government entity to appraise the property. If the owner disagrees with the finding, the owner can hire an appraiser of their own. Usually, the two appraisals are similar (within 10% to 25%). An appraiser will usually not come up with an appraisal of 500% to 1 million percent more than the governmental appraiser, but individual owners often want that much. The owner can continue to trial even if they cannot hire an appraiser that agrees with them. 5. If the two appraisals (or amounts) are different, there are negotiations. If they are close, there is generally an agreement made. If they are not, the case goes to trial. All evidence is presented to a jury, that usually has sympathy for the little guy. 6. In our state, there is a law that the jury cannot substitute their own estimate of the value (since they are not qualified appraisers). In other words, they cannot “split the difference” between the two appraisals (this is not in all states). That would be the easy way out, but there is good reason for that rule. By forcing the jury to take one or the other, the government appraiser is not encouraged to undervalue the property and the property owner is not encouraged to wildly inflate the value. In addition, if the jury awards the owner anything more than 15% higher than what the government offered, the government entity pays all costs for both sides (the owners lawyer, appraiser, etc). 7. Sometimes (under specific cases), the rules we follow require the owner to be paid far more than the property is actually worth. If the house they are living in is unfit for human habitation (and many are), they must be paid what it would cost to buy a similar house in a similar neighborhood, but in reasonable condition. 8. Moving costs must also be paid. Costs for hooking up utilities and other costs that are related to the move are paid. In addition, all monies paid are tax exempt. People who rent are also paid for moving, finding a similar property to rent, and any fees needed to enter a new place. 9. The cost of obtaining land for road projects (which I am most familiar with) is often 1/3 to 1/2 the cost of the entire project.
This will not change anyone’s mind on the Supreme Court decision, but I hope it will at least stop some of the misinformation about Eminent Domain that is being spread. It looks to me like the Supreme Court just bumped this back to the States (States Rights). If the LOCAL politicians are stealing land right and left, they can (and should) be voted out of office by the LOCAL politicians. If the States want to INCREASE the protections of property owners, they can. It is all up to the voters (you).
If nothing was unique or significant about this case, the SCOTUS wouldn't have granted certiorari.
Obviously, the decision is a significant broadening of gov. power at the expense of individual rights to private property ownership. In addition, considering the actual facts, i.e., no blight, middle-class families (at least one of whom was born in her residence and has lived there for several decades while married), corporate giant (Pfizer) beneficiary, and the realities of the prospects for abuse, people have every right to be outraged.
I hate real esate agents and thier buddies land appraisal agents.
Its all back room crap. Politics has grown to feed off us. If there was a bigger waste its our judicial system. I believe you should not be allowed to be a judge if you ever had been a lawyer.
Then don't make them.
Make your case with the facts at issue or quit the field.
I made my case you quit the field. Rightfully so, I might add since you don't have a constitutional leg to stand on.
They've had the right to take your land for the public good, not to take it and give it to private developer. When Donald Trump built his TAJ casino in Atlantic City he had to pay 2x to 3x market to aquire some holdout properties. Now he gets to pay market price and take it. Government reserves the right to condemn property in order to give it to whoever will pay the most in taxes on it.
Interesting post and you point directly at the problem to be addressed: what is the public interest when economic development is the goal driving the use of eminent domain proceedings?
Both the dissenters and the majority looked at this issue.
The dissenters complained that the majority had not provided any guidelines for evaluating economic development eminent domain condemnations to ensure they were in the "public interest."
The majority view was that there was just too much variety in the possible projects that governments undertake to make up a comprehensive set of guidelines that would be applicable in every case. They choose to rely on open and publically reviewable governmental planning processes to identify appropriate projects and on the established judicial protocols and procedures for handling the eminent domain cases as they arise. (And let's remember that there were 115 parcels of land in the project and all but 11 landowners(some of them related to others) choose to accept the development authority's offer without court action. So the use of eminent domain proceeding was a last, not a first, resort.) So it seems to me that the majority wanted to keep things as simple and as local as possible.
At the end of it's opinion, the majority also strongly invited States to impose stricter standards on this type of economic development activity if they wanted to. So action on this issue now really resides at the State (and lower) level(s) of government.
So if you really think it is a good idea for 11 property owners to be able to disrupt or entirely derail an economic development project that might bring hundreds or thousands of jobs back into a community that has be economically depressed for 15 or more years, then get your state legislature to outlaw the use of eminent domain proceedings in these instances and then be prepared to live with the consequences. The court is saying that you just can't use the 5th Amendment takings clause anymore to roadblock efforts and make a federal case out of it. (No or unjust compensation notwithstanding.)
One with lots of monkeys that vote the bananas are an entitlement.
Yes, it is a hard and painful thing to do (or even just watch). But there are times when land (which you can't just go out to a store and buy more of) just has to be reused for the public good. But it is not something to be done flippantly and that's why it has to be a complicated, procedure ladened, public process.
Bit of both actually. There are still convictions, just not as many as there ought to be.
Fight back by taking the majority's suggestion to make eminent domain takings for economic development more restrictive by changing the appropriate laws at the State level or amending state constitutions to prohibit it. But be prepared to live with the consequences when someone becomes unreasonably stubborn.
Definition of Eminent Domain
"The government wants it. The government takes it."
It's really that simple.
You are entitled to your opinion. It is not mine.
Public use, not private use with public benefits. The 14th Amend. was enacted to prevent the States from trampling the rights of it's citizens. In particular, it's minority citizens. The SCOTUS failed to do so here and left some citizens with less property right than the feds recognize.
Seems the 14th can be used only to protect abortion, porn, cornholin', flag burning and other such things. It's not used to protect rights and Freedom at the expense of socialism. This case protects the fascist version.
Details please. Yeah, I've had a case of having all the justice I could stand to afford.
Goodbye.
Every Public Works department I am aware of has general plans for the next 40 or 50 years based on projected growth. They are in the public domain and are available for the asking (and more and more are being posted on the Internet so you don't even have to ask).
I have never understood anyone who bought a nice little house on a two-lane road a few miles from the city limits of a fast growing city and expect it to never change. Its to old "I have mine so I want to keep everyone else from getting the same thing" syndrome. It is BS, pure and simple.
Anyone who doesn't plan for growth in the future will get run over by it. And they deserve to.
It happened on my property. The owner of the dog didn't have any money, so she sued me.
I was having the same thoughts as YDR and applaud his posting and your reply. In essence, what you are saying (as posted above) is this case is a prime example of federalism at work. Agree/disagree, expound at your pleasure.
If you agree that this is an example of federalism, please expand your thoughts on how far that will really take us in this particular discussion on eminent domain. IMO, federalism is currently a dying concept because of activist courts that create new "findings and penumbras" on their own whim. Along with some other posters in this thread, I see mostly bad tidings here and don't really see an out with action at the state level as proposed by the SCOTUS opinion.
TIA for your response...I appreciate your participation in the thread thus far.
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