Ostensibly, the government is not empowered to seize property for just any purpose. The eminent domain public use requirement is meant to ensure that any land, real estate or other property that the government takes will be used for the benefit of the community. However, many courts, including the U.S. Supreme Court, interpret the “public use” portion of eminent domain law in an extremely broad manner. This means that it isn’t always easy to see how a particular eminent domain action will actually be of benefit to the public.
The Fifth Amendment to the U.S. Constitution provides Americans with a number of necessary protections by disallowing double jeopardy and self-incrimination. It also includes a clause that reads: “nor shall private property be taken for public use, without just compensation.” These are the phrases upon which many agencies rely when new services or facilities are needed in a certain community. That’s because all federal, state and local laws regarding eminent domain are also based on these phrases in the Constitution.
This relatively brief entry can be interpreted in a variety of ways. Much as it is difficult to determine exactly what constitutes “just compensation” in any given situation, determining what “public use” encompasses is similarly troublesome, especially when considering how broadly courts have been interpreting the concept of public use.
For instance, numerous court decisions have reinforced the notion that “public use” doesn’t necessarily mean that the public will literally use or even enter the property that is taken. A government agency may seize land or an office building, and then use the property to house their own operations. Although the public does not literally “use” the seized land, this could still be considered as a justified eminent domain action if the efficient operation of the government agency was somehow of benefit to the public.
Similarly, “public use,” which is also sometimes referred to as “public good,” does not necessarily have to benefit the entire population. In a city or county, the need for a new school or a widened roadway won’t necessarily have an effect on everyone living within the municipality. Instead, a subsection of the population is likely to enjoy the most benefit. This would still fall under the eminent domain public use requirement because the proposed improvements are not intended for the betterment of a specific individual or company.
Whether or not a particular project is truly aimed at the public good is up to much debate. Many courts have defended eminent domain actions when they find a rational relationship between a project and any imaginable public purpose. This means that the government may be empowered in certain circumstances to seize private property with the intention of selling or giving it to another private citizen or business as long as the government agency that initiates the proceedings states that the reason for the taking is for public use.
Accordingly, a government agency could take property for the following purposes:
- -Economic stimulation
- -Alleviating unemployment
- -Preserving historic sites
- -Improving the scenery
- -Eliminating a dangerous structure
This means that it is conceivable for a government agency to seize farmland only to turn around and give it to a manufacturing concern that intends to build a factory on the land. Although the land would be going to a private company, the new factory could stimulate the local economy and provide much-needed jobs to the community. Accordingly, the land may be turned over to the manufacturer, which would certainly be of benefit to them, but it will also provide an important benefit to many local families. Based on many court cases, this action would likely hold up to “public use” scrutiny as far as a judge is concerned because a good portion of the local citizenry would benefit economically.
Still, the owner of the private land does have the right to disagree about what actually constitutes “public use” and the “public good.” Arguments may exist that other land may be more suitable for the purpose of building a factory or that the eminent domain action proposes to take too much of the land for the project. Most notably, the owner may be able to object to the compensation that the government offers.
With a track record in the court system of broad interpretations of the “public use” requirement, the cards are stacked against private property owners who want to prevent their land or real estate from being seized. Nonetheless, the eminent domain public use requirement may offer a measure of protection to some private home and business owners.
What is a “Taking”
The concept of “taking” as it relates to eminent domain actions is not always as simple as the transfer of property ownership from a private party to a government agency. In fact, sometimes no tangible property is even exchanged. What really happens is that the proposed actions of the government will destroy the private owner’s interest in or use of the property. Essentially, the private owner will no longer be able to use or enjoy the property, so it has been taken.
Of course, the average person who receives a notice of intent from a government agency is all-but guaranteed to ask, “What is a taking?” Without sophisticated knowledge of eminent domain law, this is a natural question. Knowing the answer can help people figure out how to proceed after being informed that the government needs their property.
Sometimes, the “taking” involves the entire interest of the private owner. In other words, a homeowner will be deprived of their house and the lot on which it stands or the landlord of an office building will lose the entire structure and the land that goes with it. The private owner in both of these examples will be required to vacate the premises so that the government can use it for their own purposes. What happens to the land and real estate after that depends entirely upon the proposed project. Structures may be destroyed and the land may be extensively altered. Whether the project is a public school or a highway interchange, chances are good that it will soon be unrecognizable to its former owners.
Partial takings happen a bit more often. In these cases, only a portion of the owner’s property is seized by the government. A city that wants to build a sidewalk may claim a strip of land that is several feet wide along the front of all the homes on a particular street. In another example, a riverfront home may lose its place on the shore when a county decides to change the waterway’s path. A municipality may require part of a private parcel of land when they are installing new utility services. All of the private property owners in these examples will be able to keep the vast majority of their holdings, with only a small portion of the property being taken by the government. People whose property is subject to a partial taking are still entitled to just compensation. Typically, the amount they are offered is proportional to the amount of property they are losing.
In most cases, “taking” refers to the physical acquisition of property by a government agency. However, “constructive” or “regulatory” taking is different. Constructive taking involves actions taken by a government agency that basically ddestroys the economic viability of the private property. For example, when the government builds an installation which causes neighbors to be assailed with fumes or strong vibrations, it may interfere with the ability of the owners to fully use or enjoy their property. A court may find that the government’s action constitutes a constructive taking, and that just compensation is owed to the owners, even if the government does not physically acquire or occupy the land.
Temporary takings also occur on a limited basis. This type of taking is most often seen in times of war or massive political unrest. As an example, the military may need to occupy a beachfront home or a strip of privately owned coastline when they are trying to protect the country from invasion. The private property may be given over to the government for a period of weeks, months or years, but it will eventually revert back to the owner. Naturally, the owner will be compensated for losing the ability to use the property for a temporary period.
Takings do not have to relate solely to real estate and land. Other property like trade secrets, trademarks and contract rights also may be subject to taking by the government. In all of these cases, just compensation is still a requirement.
Whenever a property owner is approached by a government agency with a taking proposal of any kind, it is wise for the owner to consult with an attorney or real estate professional about what is a taking. Constitutional law ensures that all property owners are entitled to just compensation in return for the taking, but it is not always easy for the average person to determine what is just regardless of the type of taking that is proposed.