January 1, 2019 | View PDF
Eminent Domain is defined as the power of government to condemn private property for public use—provided that “just compensation” is provided to the owners as payment for suitable and fair replacements.
In our nation’s history, seizures were often done for needed public projects. Compensation normally covered more than a property’s market value; it also had to include all other expenses suffered by the owners. An owner’s losses must be fully compensated and restored before a settlement can be considered “just.”
How do we define needed public use? There are two parameters that must be considered:
First, a project must be actually needed. The whims of large corporations colluding with politicians do not qualify as needed. There must be a genuine need by all people, and it must pass public scrutiny to qualify as needed.
Second, it must be specifically for public use. A highway would qualify. A shopping center would not.
To be honest, there are very few projects that would require condemnation. In the vast majority of cases, the land can, and should, be purchased on the open market. The only meaningful exceptions are projects that require continuous, unbroken chains of land along expedient routes to be functional—roads, railroads, pipe lines, power lines, and waterways.
Land, unfortunately, is a natural monopoly. Every piece of land is unique. In the real world, it is probably the only item that could qualify as such. In cases where specific pieces of land are required, and one or two landowners refuse to sell, the project would be impossible. Condemnation can be a solution when that happens.
But for anything other than the examples above, condemnation is not justified. Land for public buildings, parks, and other projects can be purchased on the open market, just like private citizens buy and sell property.
Over the years, “public use” has been stretched far beyond its legitimate limits, and eminent domain abuse has exploded. Many state and local governments have expanded it to include subdivisions, office buildings, factories, tax base enhancement, and various private developments.
Slum or blight abatement has often become an excuse for condemning coveted land. Blight is in the eye of the beholder, and even if it could be legally defined, private property is still just that. Here in America, civilized people don’t just seize it.
Many illegitimate seizures have taken place. Probably the most infamous case was the 2005 Kelo vs New London decision where the city condemned a 90 acre upper-class neighborhood of priceless older homes so a developer could build a large shopping mall. It was hated by almost everybody, but the courts at that time, including the U. S. Supreme Court, approved the action. And to make matters worse, after the homes were destroyed, the developer could not obtain funding and abandoned the land.
Several years ago, here in Alabama, the town of Alabaster condemned about a dozen homes to make way for a Walmart.
In Auburn, the home of John Sophocleus, an Auburn University professor, 2002 candidate for governor, and columnist here at the Alabama Gazette, had his home and land seized so a highway could be diverted to enhance the value of an official’s property. Only a tiny “uneconomic remnant” remains. John’s “just compensation” was about half of his property’s value.
Today, some eminent domain reforms have taken place. Twenty two states have disallowed “blight” as a justification for condemning property, and 35 have rejected condemnation for economic development.
But more property protection is still needed. Victims should receive full replacement value plus all related expenses, including moving and temporary housing. Seizing property for private projects and any public projects that don’t meet the qualifications for public need should be a criminal offense. Any remaining projects must get public approval (at least 60% and preferably 70% or more) before condemnation can ever begin.