A simple Google image search of \u201ceminent domain\u201d returns countless\ncartoon depictions of the giant arm of Uncle Sam hovering above a modest home,\nwhile a defenseless figure guards the front door, powerless to stop the\ninevitable seizure of his home. Absent any context as to why the situation is\noccurring, the reader is sympathetic, of course, toward the homeowner. Eminent\ndomain, it seems, typically conjures images of its land-grabbing abuses.<\/p>\n\n\n\n\n\n\n\n
Eminent domain is the legal power of the federal, state, or local\ngovernment to take private property for public\nuse. The Fifth Amendment to the U.S. Constitution states that the government must\ncompensate the property owner for the fair market value of the property (referred\nto as the \u201cTakings Clause\u201d). The Fourteenth Amendment expands the Takings\nClause to include protections from takings by the states [1].<\/p>\n\n\n\n
The official action of the government exercising its power\nof eminent domain to transfer title is referred to legally as \u201ccondemnation,\u201d where\nthe condemnor (person or entity that expropriates property for public use) is\nthe government body acting to acquire private land and the condemnee is the\nperson whose property is expropriated for public use [2]. This meaning is separate\nfrom the term \u201ccondemned\u201d as used to describe a property as uninhabitable. <\/p>\n\n\n\n
Typically, the government wishing to acquire the property\nwill make an offer to the property owner (notice of intent) before resorting to\nformal condemnation. In a condemnation by the federal government, the condemnor\nbrings the individual into court by filing a declaration of taking under 40\nU.S. Code 3114 in the U.S. District Court for the district where the subject\nproperty is situated. The declaration requires a statement of the authority by\nwhich, and the public use for which, the subject land is being taken; a\ndescription of the land; a statement that the land is taken for public use; a\nplan showing the land taken; and a statement of the compensation the acquiring\nauthority estimates is just compensation for the property. On filing the\ndeclaration and depositing the compensation with the court, title vests in the\ngovernment, with the right to fair compensation for the land vested in the\nprivate owner [3]. <\/p>\n\n\n\n
Condemnation procedures for states are established by the\nlaws of the state where the subject property is located. Local ordinances vary,\nand several jurisdictions have passed legislation to limit eminent domain\nabuses at the local level [4]. Typical requirements for condemnation at the\nstate and local level include making a concerted effort to purchase the\nproperty from the owner, filing a petition for condemnation with the\nappropriate court if an offer is refused, filing a lis pendens (pending action)\nin the land records where the subject property is located, and serving notice\nto the property owner of such filing. The owner has a set amount of time to\nrespond to the notice, with the opportunity to challenge the action in court. To\nobtain a final judgment vesting title in the government\u2019s name, the government must\nbe able to establish that the seizure of land is rationally related to a\nconceivable \u201cpublic purpose\u201d [1]. <\/p>\n\n\n\n
The \u201cpublic purpose\u201d requirement is where eminent domain\ngets caught up in semantics. The government must be able to prove that the\ntaking is beneficial to the public, but what counts as public use or advancing\npublic interest? There is much ambiguity and difference of opinion on what is\npermissible as a \u201ccommon good,\u201d particularly when the tradeoff is displacing\npeople from their family homes. <\/p>\n\n\n\n
Historic uses of eminent domain have focused on public works\nprojects [5]. Rulings have also expanded the definition to allow condemnation\nof property to private corporations for public utilities like electric\ncompanies and rail transportation. Eminent domain has been used to establish\nparks, preserve historical sites, build infrastructure, and construct public\nbuildings. <\/p>\n\n\n\n
From its original application to facilitate public works\nprojects to more modern expansions of its use \u2013 such as the redevelopment of\neconomically blighted areas, or acquisition of lands to construct pipelines to\ntransport petroleum \u2013 eminent domain law has become increasingly more complex [6].\nThe language surrounding the use of eminent domain to redevelop land \u2013\nparticularly the classification of land as \u201cblighted\u201d or campaigns of \u201curban\nrenewal\u201d \u2013 are highly subjective terms, meaning different things to the\ndifferent parties involved. This can be seen in a current case developing in\nRacine County, Wisconsin, where eminent domain is being used to remove\nhomeowners from their land to make way for Foxconn Technology Group, an\nelectronics manufacturer, as reported by Rust Belt Magazine [7].<\/p>\n\n\n\n
Commonly cited in the case against eminent domain is the\nSupreme Court\u2019s 2005 decision to uphold the Connecticut Supreme Court\u2019s earlier\nruling in Kelo v. New London, where property earmarked for a redevelopment\nproject came under scrutiny by some of the affected homeowners. While many were\nwilling sellers, the remaining homeowners petitioned the court, claiming the\naction violated the \u201cpublic use\u201d restriction, as parts of the property would\nconfer private benefits on a private party. When the developer failed to obtain\nfinancing, the land sat empty. In response to the case, a majority of states\npassed protective legislation to guard against similar outcomes, forbidding the\ntaking of private property to transfer to a private entity for economic\ndevelopment.<\/p>\n\n\n\n
Eminent domain raises many debates about the government\u2019s sovereignty\nand landowners\u2019 rights against encroachment \u2013 what qualifies as a\nconstitutional taking by the government, when is compensation necessary, and\nwhen has due process been violated? <\/p>\n\n\n\n
Questions arise in cases where rezoning changes the legal\nuse of property [8]. Residential property may be rezoned at the local level for\ncommercial property, or upzoned to make way for new and often higher-income\nhousing [9]. Property owners may even lose rights in their property if they do\nnot conform to new zoning classifications in a set amount of time, in a process\ncalled \u201camortization\u201d [10]. The historical meaning of the term, as opposed to\nits use in mortgage parlance, according to Black\u2019s Law Dictionary, is \u201cto\nalienate or convey lands to a corporation\u201d [1].<\/p>\n\n\n\n
The Institute for Justice interprets this antiquated\npractice as slow-process eminent domain: \u201cUnder amortization, once it declares\na business \u201cnonconforming,\u201d the government gives the business a certain time\nframe to ostensibly earn back, or \u2018amortize,\u2019 its investment in the property.\nAt the end of this period, the business owner must bring the property into\ncompliance (even if it is not suited for the new zoning rules) or cease\noperation\u201d [11]. The process \u201cforce[s] a transfer of the property to more\nattractive private owners\u201d [11]. A recent case involved a Dallas, Texas\nautomobile mechanic, whose business was threatened by the city\u2019s rezoning to\nremove automotive businesses, making way for a corridor to an arts district [11].\nUnlike outright eminent domain, the process of displacement by amortization does\nnot compensate property owners for their land. <\/p>\n\n\n\n
There is relatively little that residential real property\nowners can do to combat condemnation by means of eminent domain, unless the\ntaking is unconstitutional. If facing a case of eminent domain, consult a\ncondemnation lawyer for advice, as each situation is unique. <\/p>\n\n\n\n
[1] https:\/\/www.americanbar.org\/groups\/young_lawyers\/publications\/the_101_201_practice_series\/primer_eminent_domain_takings_law_under_us_constitution.html<\/a><\/p>\n\n\n\n [2] Black\u2019s Law Dictionary,7th<\/sup> ed.<\/p>\n\n\n\n [3] https:\/\/www.justice.gov\/enrd\/anatomy-condemnation-case<\/a><\/p>\n\n\n\n [4] http:\/\/castlecoalition.org\/local-legislation-on-eminent-domain.<\/a><\/p>\n\n\n\n [5] https:\/\/www.justice.gov\/enrd\/history-federal-use-eminent-domain<\/a><\/p>\n\n\n\n [6] https:\/\/www.washingtonpost.com\/news\/volokh-conspiracy\/wp\/2016\/06\/07\/the-growing-battle-over-the-use-of-eminent-domain-to-take-property-for-pipelines\/?utm_term=.1058ef72babb<\/a><\/p>\n\n\n\n [7] http:\/\/beltmag.com\/blighted-by-foxconn\/<\/a><\/p>\n\n\n\n [8] http:\/\/realestate.findlaw.com\/land-use-laws\/land-use-and-zoning-basics.html<\/a><\/p>\n\n\n\n [9] https:\/\/www.citylab.com\/equity\/2017\/01\/new-york-city-has-been-zoned-to-segregate\/514142\/<\/a><\/p>\n\n\n\n