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Eminent Domain Information
What Is Eminent Domain?
In United States law, eminent domain is the power of the
state to appropriate private property for its own use without the owner's
consent. In England and Wales, and other jurisdictions that follow the
principles of English law, the related term compulsory purchase is used.
Governments most commonly use the power of eminent domain when the acquisition
of real property is necessary for the completion of a public project such as a
road, and the owner of the required property is unwilling to negotiate a price
for its sale. In many jurisdictions the power of eminent domain is tempered with
a right that just compensation be made for the appropriation.
Some coined the term "expropriation" to refer to "appropriations" under eminent
domain law, and may especially be used with regard to jurisdictions that do not
pay compensation for the confiscated property. Examples include the 1960 Cuban
expropriation of property held by U.S. citizens, following a breakdown in
economic and diplomatic relations between the Eisenhower administration and the
Castro regime.
The term "condemnation" is used to describe the act of a government exercising
its authority of eminent domain. It is not to be confused with the term of the
same name that describes the legal process whereby real property, generally a
building, is deemed legally unfit for habitation due to its physical defects.
Condemnation via eminent domain indicates the government is taking the property;
usually, the only thing that remains to be decided is the amount of just
compensation. Condemnation of buildings usually occurs through health and safety
hazards or gross zoning violation. In this case, the owner of the property does
not lose the property, he or she merely needs to make corrections to the
property to bring it up to health, safety and/or zoning codes.
The exercise of eminent domain is not limited merely to real property.
Governments may also condemn the value in a contract such as a franchise
agreement (which is why many franchise agreements will stipulate that in
condemnation proceedings, the franchise itself has no value).
In the United States, the Fifth Amendment to the Constitution requires that just
compensation be paid when the power of eminent domain is used, and requires that
"public purpose" of the property be demonstrated. Over the years the definition
of "public purpose" has expanded to include economic development plans which use
eminent domain seizures to enable commercial development for the purpose of
generating more tax revenue for the local government. Critics contend this
perverts the intent of eminent domain law and tramples personal property rights.
On Thursday June 23, 2005, the Supreme Court ruled, in a 5-4 ruling against
Connecticut residents, that local governments may seize private property for
economic development. Sandra Day O'Connor, who was in the minority vote,
released her opinion on her displeasure on the outcome of the ruling, which she
rarely ever does. The prevailing 5-vote majority was comprised of Justices
Anthony Kennedy (R-Reagan), David H. Souter (R-Bush), John Paul Stevens
(R-Ford), Ruth Bader Ginsburg (D-Clinton), and Stephen G. Breyer (D-Clinton).
In 1981, in Michigan, the Supreme Court of Michigan, building on the precedent
set by Berman v. Parker, 348 U.S. 26 (1954), permitted the neighborhood of
Poletown to be taken in order to build a General Motors plant. Courts in other
states relied on this decision, which was overturned in 2004, as precedent. This
expansion of the definition was argued before the United States Supreme Court in
February of 2005, in Kelo v. New London. In June of 2005, the Supreme Court
issued their decision in favor of New London, making eminent domain applicable
for private economic development.
Following this decision, paperwork was filed to obtain the property of Justice
David Souter, who voted in favor of the Kelo decision.
In other cases eminent domain has been used by communities to take control of
planning and development. Such is the case of the Dudley Street Initiative, a
community group in Boston which attained the right to eminent domain and have
used it to reclaim vacant properties in the purpose of positive community
development.
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