Eminent Domain: Government Use of Eminent Domain, Research Paper Example

Introduction

The term Eminent Domain is used to refer to the right of a federal, state or local government to appropriate privately owned land and contained property for use in development projects, but with a just compensation to the owners. As a noun, it refers to that government power or right to appropriate privately owned property for public use, without the necessity of the owner’s consent. In most nations, this power is justified by the payment of just compensation for such property and the accrued benefits in infrastructure development.

Eminent Domain as a term is used in the US while in the UK, the term ‘Compulsory Purchase’ is more common. In Canada and South Africa, it is called Expropriation and in Australia Resumption or Compulsory Acquisition.  How the government uses this power is the course of controversies as shall be detailed hereunder in this paper. In recent times, the government has to an extent abused this power by allowing variant government entities such as federal agencies, state governments, county councils, city councils, school districts, hospital districts etc to bulldoze private real estate in the name of public development agenda.

The legal process of Eminent Domain has precise steps. The decision to take such private real estate is called condemnation, which is then followed by declaration of public need. The third step is an appraisal of the property, followed by an offer to the property owner and finally the negotiations.  The only thing a property owner can do to stop unjustifiable condemnation and ultimately appropriation of his or her property is to sue the government entity , not to annul the condemnation, but to get a court’s determined just compensation.  The government has power to assume ownership even when such a trial is ongoing.

The most common public uses of Eminent Domain spoils, and as illustrated by the US constitution 5^th Amendment, include construction of schools, highways, streets parks, dams, airports, reservoirs, public housing, redevelopment, hospitals, military bases and public/government buildings. In actual exercise, eminent domain can be used by the government not only in the appropriation of real estate. The government has power to condemn numerous personal properties like supplies for military expeditions during war, franchises and even intangible property like patents, contract rights, copyrights and trade secrets. Funny, the Eminent domain grants the government the power to seize football teams too.

While in all these uses the government may have a right, justifiable cause and logic in imposing Eminent Domain, the one facet of the power that brings controversies is assignment to third parties. The Eminent Domain power not only allows the government to assume ownership or use such condemned land for public use but it also allows the government to delegate the condemned land to third parties, on the basis of having those third parties devote the land to civic use, public use or economic development (Greenhut, 2004).

In essence, the 5^th Amendment law allows the government to misuse an otherwise genuine and beneficial policy to marginalize its citizens for commercial exploits.  Instead of conducting private real estate transactions with individual owners, corporate entities and large conglomerates only require to sweet talk the government and they will get their way to private property. When government favored developers start shoving anybody else out of prime sports, the Eminent Domain looses its essential benefits and becomes sanctioned exploitation.

Derived Benefits of Eminent Domain

Eminent Domain, understood properly as legal power assigned to the government by the constitution to expropriate any desired private property for the purpose of public use and necessity, is not in itself a wrong. The public must not be blind to the potential benefits that most of these projects have for the larger public. A successful airport, school or highway project is of essential good to the larger community and without Eminent Domain powers; such projects might never be possible.

This is actually the basis on which the America economy has been built as well as those of almost every nation in the world (Greenhut, 2004).  Such cardinal infrastructure has benefits incomparable to personal property rights.  Even more, such developments usually create employment, amplify the standard of life and increase the earnings of the community nearby.

Resultant Disadvantages of Eminent Domain

As detailed above, the use of Eminent Domain by the government to sanction land for public purpose is noble. But when the government uses that same law to the benefit of private developers, the law becomes the proverbial ass. The public/private partnership era in which we are living allows any private developer with an adequate bank account to coerce the government to condemning a particular track of land in which they have an interest. The government’s claim to the condemning of that land may be personal interests of persons in the government, the promise of tax and the idea of having the neighborhood developed.

The fact that such decisions, those of condemning land, are left to legislature and other elected officials is in itself problematic. These are decisions that ought to be left to professional valuers, planners and socio-economic experts. The point is, when Eminent Domain is used to build a high school, a public facility, a hospital etc, it is ideal. However, not when it is used for economic development since in most cases the benefits that accrue from such projects are shared between the developer, the corporation, the shopping mall operator and the public official who hand the clout to condemn the land for them. Most of these projects do not actually create jobs since the developers hire their staff from other places and transfer them based on experience and skills.  Even the tax benefits sometimes never accrue since most of the projects are already under tax rebates on the basis of being ‘area development’.

Controversies

The US constitution section on Eminent domain law is in violation of article 17 of the US ratified Universal Declaration of Human Rights (Samantha, 2001). The Universal Declaration of Human Rights states that in property rights, no individual should arbitrarily be deprived of his or her property. UDHR’s purpose is to define universally what fundamental freedoms are and what human rights are, in the understanding of the United Nations Charter (as ratified by the US government and constitution). This charter ought to bind all member states to respect private property as a legal requirement (Samantha, 2001). In this perspective therefore, the US Eminent Domain law contravenes the very charter it has ratified.

James Madison explores the misuse of Eminent Domain in New London Connecticut and summarizes with the following statement, “How did America get here, when did we sacrifice all sanity, all fairness and all solidarity to America good, such that the corporate America is having a free reign?”. This was after the 2005 Supreme Court case, Kelo vs. City of New London, where the court struck Eminent Domain to offer an important private land to an economic development project despite national public outrage, swift legislations, media denouncements and general national outcry for fairness (Main, 2007).

The biggest of all controversies is that in most cases where the government invokes Eminent Domain, the land in question is not that of the wealthy. Instead of taking the best land from the wealthy in a bid to help the low-income citizens, Eminent Domain only surfaces when a cash-loaded corporate entity wants the low-income earners out of their way. The law has become the best and easiest strategy of getting land from poor citizens and handing it over to those who have the clout, the means and the influence.

Nonetheless, there are those schools of thought who still believe that Eminent Domain is the only way cities can grow. Other believes that the offer of just compensation is adequate to get the locals packing. But in most cases, private property owners get compensation way below the market value of their property such that they cannot even buy a comparative property elsewhere (Block, 2006). History has shown that development of a region does not accrue from a single huge property built all at once. Then it becomes uninteresting, an imposter and a rejection by the locals.  Economic development is a gradual process of self-actualization, persistent, planned and systematic.

Contemplating on Eminent Domain

Condemnation power should not be wholly denied the government since it is still useful especially in infrastructure development, provision of social amenities and in stimulating social advancement. Rising against Eminent Domain wholesomely portends some long-term, delimiting and even harmful repercussions since, if in a time of war for instance, the military is dependent on such provisions. It is fair to say that the American public owes most of its quality-of-life and standards-of-living improvements to the eminent domain law. The elimination or overly severe limitation of the Eminent Domain power could thus preclude many similar enhancements for the future generations. However, never, never ever, should the law be used to advance the commercial interests of those who have the clout.

President George W. Bush issued an executive order (order no, 13406) on 23 June 2006 to demand that federal government respect and limit application of Eminent Domain on private property for the misused cliché ‘public use’ and with the so called ‘just compensation’. The executive order set limits to the application of Eminent Domain by stating candidly that the law should not be used to condemn land for economic advancements, economic interests, and economic partnerships of any private parties. Yet by August 2008, more than 69 such cases had been reported, all of them under the funding of the Federal government. This indicates that the intents of such exploit are not legitimate, not genuine and not in good faith or integrity (Block, 2006). That is why they must be opposed.

The government could result to several alternatives to the Eminent Domain law such as having the private developer buy out the tenants. Even if some tenants holdout, the Rockefeller Center development project illustrated that such a monumental project can build around any existing property. The Eminent Domain law is not in itself wrong. It can be used for public good. When the intended project is for use by the public and not to benefit private developers, there is logic in it (Main, 2007).

A repeal of the 5^th Amendment is therefore necessary to emit the section of the law that grants the government right to award condemned land to third parties. If the government condemns land then it should use it to help the society around such tracks of land and not to transfer the same to third parties. Additionally, the private property owners of condemned land should have provisions to repeal such condemnation if it is not fair, just and in good faith. This will hinder misuse of the law.

Thesis Statement

The federal, state and local governments should strictly regulate and limit the application Eminent Domain, in such a way that it is only used to benefit the public at large and not private developers.

References

Block, W. (2006). The Curmudgeon: Defending the Undefendable. New York: The Guilford Press.

Greenhut, S. (2004). Abuse of Power: How the Government Misuses Eminent Domain. New York: Seven Locks Press.

Main, C. (2007). Bulldozed: Kelo Eminent Domain and the American Lust for Land. New York: Encounter Books.

Samantha, J. (2001). Principles of Property Law. Newport: Cavendish.