The Right to Take in Eminent Domain

Public Use Requirement and the Right to Take

Transcription of the Video

Hello, everyone, this is Dan Biersdorf. I’m an eminent domain lawyer, and this video represents the second in our series entitled to be vigilant about eminent domain, big brother may not be your friend. The first video that we did basically gave our viewers a broad overview of the eminent domain process from beginning to end. This one is basically going to focus on what we call the right to take. We start out that investigation, if you will, by considering the entities that have the right to exercise the power of eminent domain. The entities that have the power of eminent domain clearly are the government. All the way from the federal government down to state governments, state agencies, school districts, counties, towns, municipalities, library boards, park boards, any governmental authority will have the right to exercise the power of eminent domain.

Additionally, there are some technically non governmental entities. Some people call them crazy governmental because they’re heavily regulated, but also have the power of eminent domain. Those basically include, for instance, utility companies like power companies with power lines, energy companies with pipelines and our railroads in order to take private property from an individual owner.

The government has to basically satisfy two requirements. First – The property must be used for a public use, the idea of a public use, you might say. What is a public use? Easy ones are, for instance, a road that’s a public use. A school is a public use. A park is a public use. A jail, a government building, anything that you can imagine that would be used by the government for the benefit of people generally in society is going to probably fall under the category of public use.

Second, the property owner must be paid just compensation might say what is just compensation? Well, just compensation, basically, as is as it has come to be developed in the area of eminent domain law is basically the fair market value for the property that has taken. The the issue of as I indicated earlier, there’s two requirements decided, just compensation, paying the money. You have the public use, but there’s also a necessity requirement. And I won’t go into this great deal. I think some of it is fairly obvious. And I’ll maybe just use an example. If the government is planning on putting a new road through a property that has no road today and the road is going through a 40 acre parcel and they maybe need to have a strip, this, let’s say, of one hundred and fifty feet wide along one edge of that 40 feet, 40 feet of a 40 acre parcel. It would be improper under the Constitution for the contending authority to take the entire 40 acres. They don’t need the entire 40 acres. They only need the one hundred and fifty feet on the one side of it. And so in most cases, the issue of necessity does not arise. But it’s at least important to understand because in certain circumstances, the the government has probably reached too far in terms of what they are seeking to acquire. And as a result, it may be a reason why the taking would not be authorized and would be overturned or over overruled by the by the court system.

Many people have asked whether or not it’s possible to stop a project and therefore stop a taking because the project just doesn’t make any sense. As an example of a property owner that will come and say, you know, they want to take one hundred and fifty feet off the edge of my property for this new road. And my house is there. I’ve got two buildings, two outbuildings there. And yet right across the street, there’s nothing there. Right across the city. They’re building a new road right across this road where they can put this new road. There’s nothing there’s an open field. So why do they take mine and not take the other one? The other one would be less expensive. They wouldn’t have to pay me as much money. And it seems like that just doesn’t make any sense. This issue has been raised many times before. Many courts and basically the courts have uniformly said this. If the taking needs, the public use, for instance, a road, it is not the province of the court to determine whether the placement of the road is the wisest decision. Or whether it’s the smartest decision or whether it’s the most cost effective decision. That decision is strictly for the legislative authority that is authorized to do the taking in the first place. If the public use is met, taking will be authorized and the other issues of efficiency, cost effectiveness… smart, smart plan, whatever. All those issues the court courts have said are left for the political arena.

So I make a point of that because a lot of people feel that that should be a basis for being able to stop a right to take. And I just want to clearly point out it is not. And so to try and focus on that and try and create a factual basis along those lines is basically an entirely a futile effort.

In the next section will discuss Blight as Public Use starting with a video from Dan Biersdorf.

Blight as Public Use

Transcription of the video

Governments have seek to expand the area of public use to try and get into the areas of development or redevelopment, and this is probably created the most contentious area in the eminent domain law with regards to the whole public use issue. A lot of this focuses around the concept of blight. And you might say, well, what is blight? When the concept of blight was first addressed and basically extended to allow for the basis of exercising the power of eminent domain… back in the basically in the 1950s, blight was basically viewed as a real deteriorating neighborhood. And municipalities looked at this problem and said, how can we correct this? And they felt the only way to correct that was they would have to acquire through eminent domain if, if necessary, the land within the blighted area so that the blight could be removed and the land then resold either to a developer so that some new economic growth could be built on the land over the years. This this concept of blight has kind of been pushed, I guess, to the limit by condemning authorities, because what they have what they were trying to do is look for reasons to try and do economic redevelopment.

So as a result, they use blight and label properties as being blight, which a lot of people felt under the what we would probably all agree is a classic definition of blight did not really fit that classic definition. The courts historically did not maybe take as hard nosed a stand to determine whether or not a truly objective blight standard had been satisfied. This whole concept, I guess, probably culminated in a decision a few years ago called Kelo vs. City of New London, where this particular municipality, New London, Connecticut… Actually went out and wanted to do redevelopment and they didn’t even realize and they just basically said we want to create a more valuable tax base and so we are going to take property under the power of eminent domain strictly and for the sole reason of creating a more valuable tax base. And they argued or they believed and later argued to the court that the creation of a more valuable tax base was in fact a sufficient public use to justify taking property away from one private property owner and giving it to another. And the case was actually appealed to the US Supreme Court there in a very contentious five to four decision. It was a split decision. The Supreme Court basically came down and said they didn’t necessarily agree that economic development was a proper public use, if you will, to be used anywhere. What they basically said was the federal government through the federal constitution, would not stand in the way of a taking for redevelopment or solely increased tax benefit purposes as a proper public use. Basically saying that that issue was to be left for the states. So theoretically, each state could have a different conclusion as to whether economic development was a proper basis for exercising eminent domain under a public use standard.

Well, as you can probably imagine, because of the the tremendous outrage that was created throughout the country, many legislatures around the country didn’t pass laws prohibiting this type of taking. And now the battlefront, if you will, of the battle ground, the battle line, whatever you want to use as far as blight is concerned, is whether or not the condemning authorities, the governmental units that are seeking to redevelop what they consider lower grade neighborhoods are now classifying them as blighted. And basically abusing the term blight in order to satisfy the public use criteria for the taking the term that’s often used is that the governmental authority is using blit as a pretext for the right to take property, even though it may not truly be blighted in an objective term. They are calling it so they can acquire the property and redevelop it for another, more valuable use. This is an area that is still not settled. There is a lot of litigation in this area and I expect until objective, truly objective standards are established in the state by state basis, this will continue to be an area that is going to see a lot of litigation in in the court system.

In the next video, we discuss challenging the right to take.

Challenging the Right to Take

Transcription of the video

We’ve talked about blight as a pretext for a public use and that this is the kind of the new frontier for challenges, I guess, to the right to take. And I believe that is the case. The problem with those challenges is that they can be very expensive. And so I usually tell property owners that approached me with those types of issues is that it’s oftentimes best to have a team, I guess, if you will, of a people or a consortium, whatever term you want to use a group of owners that are all going to be affected by this property property to be team together, because the cost of litigating a right to take challenge on the grounds of blight can be very expensive and daunting and oftentimes just too much so for a single property owner to undertake all by themselves.

You as a property owner do have a right to challenge the right to take. And this is the only way, if you will, that you as a property owner have the power to stop a tacking from occurring because they indicated to you earlier. There are two ways or two conditions for condemning authority to acquire property, one to just compensation, the other, the public use and necessity, just compensation will not stop taking. But the failure of the condemning authority, the failure of the government to actually establish a public a proper public use will be a basis for stopping the taking.

And usually the classic one where it arises is in this, for instance, the blighted is it is a property truly and really blighted. If the property owner believes it’s not, they can make the challenge. And for instance, if the court then finds that the blight criteria has not been satisfied, then the courts will order that the taking cannot go forward and the private and the property owner is allowed to keep their property.

In the next section we will discuss Government planning.

Government Planning

Transcription of the video

The last thing that I want to talk about in this video in our series today is planning. A lot of people are concerned because a project is announced and after the project is announced, there’s much discussion about alternative sites that has, for instance, that a road road may go through or there may be a discussion about a new city hall and there are different locations that are being considered. And the owners have complained to me and said, Dan, you know, this is a problem. They have an income producing property where they have tenants or they have a business that they have to worry about knowing am I going to be here or am I not going to be here? In other words, for a property owner to have to deal with this uncertainty of eminent domain possibly coming down the road to cause their property to be taken is very unsettling and very troubling. And so as a result, they come to me, saying can we do something about that? Is there some way that we can force the government to take our property because they’re creating all this havoc and all this trouble for them?

And the general answer with that is, unfortunately, no. There will be some exceptions, I guess, if you will. We’ll talk about another in another series. But the point that I want to make in terms of the right to take is that leading up to an actual taking, the courts have said and repeated occasions that governmental authorities that have the right to take property have a lot of latitude plan. And so in order to be able to get their taking right from what they believe is right, the courts have said they have the right to take the time to plan to make public inquiries, to have public hearings and to put out different proposals, different alternatives.

And simply because they are doing that does not rise to the level of a taking that would justify the property owner to receive just compensation. So I get that inquiry a lot. And as a result, I just want to make that point very clear, that condemning authorities do have the right to plan. They do have a right to look forward and make sure that the acquisition that they are doing from their perspective is the right one for their purposes.

This concludes this particular video with regards to the right to take in our series. I thank you so much for viewing it today and and hope you will join us with others in the sequence later. Thank you so much.