Eminent Domain - An Education For Me

Bill Quick posted yesterday about a report on local governments using eminent domain to condemn homes and business then transfer the properties to another private owner (developers and other businesses) for their own private use.

I first heard about eminent domain being used to take property for private use when I lived in Dallas. When The Ballpark at Arlington was in development, eminent domain was used to condemn homes sitting on property that the Ballpark's developers wanted to use for parking. I was amazed that this was even legal - the government taking someone's property by force in order to build a parking lot for a sports stadium.

When I heard about that report yesterday, I was curious again as to why exactly this is legal. I decided to look it up today.

The power of (federal) eminent domain is implied in the 5th Amendment to the U.S. Constitution: ".....nor shall private property be taken for public use, without just compensation." The government has the right to take any property it wishes for public use, but the owner must be paid the value of the property taken. State constitutions have a similar if not identical provision in them regarding eminent domain.

The U.S. Supreme Court decided a case regarding eminent domain in 1954, giving a green light to the government (Congress and state legislatures) to use the power of eminent domain to condemn any property for any public use, public purpose, or public benefit. That case was BERMAN v. PARKER, 348 U.S. 26 (1954).

The Court said that Congress and Congress alone determines the valid reasons (public use, purpose or benefit) to take property by eminent domain and that the Court has little authority to challenge Congress in its determinations. (State legislatures have the same authority at the state level.)

In addition, the fact that the property passes through or ends up in private hands for private use is of no relevance as long as it conforms to the stated goals and purposes of Congress.

Takings such as the one at The Ballpark in Arlington and hundreds more all over the country have been done because the state legislatures passed laws defining the justification and authorizing it. One method that seems to be popular is to designate a neighborhood "blighted" condemn the properties, then turn them over to a developer who promises to build more expensive housing, shopping centers - practically anything that will bring the city more tax dollars. Costco stores do this as a standard business practice.

I find this practice unconscionable. I cannot imagine what it would be like to live in a home for 20 years, then receive a notice on my door that my home has been condemned and I have to move out because Costco wants to build a store and put a parking lot where my home currently sits. Since the courts have already ruled that this is legal and constitutional, the only to stop this is to have the lawmakers repeal the legislation authorizing these takings to occur in the first place. Even better would be legislation that outlawed these types of takings. Somehow, I think that is going to be an uphill battle.

Update 02-Aug-2004: Michigan State Supreme Court overturns landmark eminent domain decision