Reasons for Eminent Domain Takings

Public Use For most people, the limits of "public use" are fairly clear. Roads are for public use because we can all walk, drive, or bike on them. Parks are for public use because we can all picnic, play, or rest in them. Furthermore, because these are not privately owned, they are not privately maintained. We all pay for them and we all benefit from them, although not necessarily in equal or proportional measure.

Publicly-owned utilities are equally straightforward as public use. We maintain the utilities, and we all pay in according to the amount we benefit. No one profits from the system, with the exception of public bond holders, who can be anyone and have no controlling interest in the system.

Private Utilities--Still Public Use? This is a difficult point. When a utility is a publicly traded corporation or privately own company, can its structures still be considered public use? When a road becomes a toll road, run by a publicly-traded corporation or privately owned company, is it still considered a public use of land? Or, when a railroad is to be a publicly traded corporation or privately owned company, can the land taken for the tracks be considered public use. Although the public receives some benefit, it does not receive all benefit of the land. Some of the benefit of the land, measured by the amount of profit, is sequestered for private use.

At first, with the railroads, the US government argued, and the Supreme Court confirmed, that the construction of railroads was essential to its ability to control and regulate interstate commerce. Although many wondered why, if railroads were necessary instruments of government, they had to be run as private, for-profit corporations, the government side-stepped the question.

Private Use, Public Benefit? As early as the 1830s, the Supreme Court began using a different standard to interpret the Fifth Amendment and similar provisions of state law. In Boston & Roxbury Mill Corp. v. Newman (1832), the Supreme Court determined that a Mill Law allowed a mill owner to flood the property of upriver land owners as long as he compensated them. Here, the Court determined that there was a great public benefit from the construction of mills and that this was sufficient to justify the use of what was essentially inverse condemnation.

As a result, many courts decide the question of what constitutes a valid taking on the basis of whether the primary benefit from a particular use is public or private. That is, does the public at large or the individual investors, etc benefit more from a particular use. In the case of utilities and roads, it seems reasonable to argue that the public receives the primary benefit. We all like the ability to have light, heat, and water, and enough people choose faster toll roads over slower free roads that we can surmise the primary benefit there is also public.

Diminishing Returns However, as the relative power between corporations and municipal governments has continued to tip in the favor of corporations, the amount of public benefit necessary for a project to qualify as "public use." Throughout the late 20th century and through the infamous Kelo v. City of New London (2005) Supreme Court decision, many projects were forwarded with eminent domain solely on the promise that the project might create jobs and might increase tax revenues. Sometimes they did, and sometimes they didn't, but what always happened was that owners of residential properties and small businesses were pushed aside to make room for large corporate offices or stores.

Susette Kelo stood up against her local government which seemed to be playing the lackey for Pfizer, threatening to bulldoze her home so that the corporation could have a nicer neighborhood for its employees to play in. She galvanized the support of people nationwide who could identify with the threat to the home she loved, and she took her fight all the way to the Supreme Court, which refused to intervene on her behalf, saying that if the City of New London felt the use of the land constituted a public benefit, who were they to question it?

(Ironically, Pfizer recently announced that it would leave its research facility in New London, leaving the area scraped bare and forever to be undeveloped.)

Legislative Backlash In response to the Kelo decision, many people realized that if they wanted to protect their property, they had to use legislative action to prevent local governments and the courts from giving it away. Many states across the country enacted important reforms to protect individual property owners from corporate land grabs. In the forefront was Florida, which explicitly prohibited the transfer of property from one private owner to another via eminent domain (with the exception of utility companies, toll road corporations, and similar private utilities). This means that if you are a property owner in Florida you have nearly unequalled protection for your property.

If your property is threatened by eminent domain and you want to fight the action, visit the website of the Florida Property Rights Law Firm, PA to learn how.

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