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Eminent Domain When Can the Government Take the Property of a Citizen Without His Consent?

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Melanie Carter Political Science 2212 State & Local Government W01 Spring 2013 Eminent Domain When Can the Government Take the Property of a Citizen Without His Consent? One of the more controversial Government actions is its ability to exercise the power of eminent domain to take control of property that belongs to an individual or private entity against their will. “Eminent domain, broadly understood, is the power of the state to seize private property without the owner’s consent” (WordNet).

This paper will examine the elements of eminent domain and what protections are in place for citizens that may be effected by it, identify types of transactions that are typically involved and accepted in eminent domain cases and discuss what the citizens should expect to receive as compensation even though they have lost the property due to some of the broad definitions of the elements. Any time the government is taking the property of an individual, without his consent, it is a controversial matter.

Many politicians and citizens agree that it was necessary to establish a method of acquiring property for the needs of the common good of the community even when there is a lone hold out property owner. It has been held that the power of eminent domain can only be exercised after meeting the protection standards established under the Fifth Amendment of The United States Constitution. We have been conditioned through the media that the Fifth Amendment protects us against self-incrimination “I plead the fifth”.

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Self-Incrimination is an important aspect but most people don’t realize that the Fifth Amendment has a “taking clause” designed to protect the property owners. “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for he same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation (United States Constitution Fifth Amendment). The Amendment initially only applied at a federal level until passage of the Fourteenth Amendment in which due process and equal protection were made applicable to the states.

Taken at face value, the Fifth Amendment taking clause can be broken down into four basic elements: Nor shall (1) private property be (2) taken for (3) public use without (4) just compensation The first is private property, it is self-explanatory and the definition is fairly narrow today although its prior applications were more expansive for example one of the biggest issues with emancipation of slaves was the one time belief that they were seen as property and not as individuals and this status protected the property owner.

It was this view that brought about the Emancipation Proclamation and passage of the Thirteenth Amendment. Private property is defined as: Private property N-land or belongings owned by a person or group and kept for their exclusive use (Dictionary. com) The next element is the taking of the property. The property my be taken from the owner without their consent in order to make an improvement of some sort that will have a beneficial result for the community.

It’s important also to note that property owner is not only in jeopardy of losing their property to the government but that it may lose to a private developer for the purpose of an improvement that might add value to the city for example in the form of taxes. In the case of eminent domain the property is taken without the consent of the owner of the property. If the owner were to consent or agree to a payment then it is simply a transaction and eminent domain is no longer applicable.

The third element is the requirement that the property is taken for public use and because of the definition applied for public use it is the most controversial. While the party who is surrendering his property under eminent domain will almost always be upset or offended, the remainder of the citizens will typically may not take issue with the process as long as they see the benefit for themselves and their communities. Improved infrastructure such as road building, bridge building, water shed protection and education are examples of these takings that are agreeable with most of the people.

The broad definition of “Public Use” in Eminent domain cases as applied today: Public use n. the only purpose for which private property can be taken (condemned) by the government under its power of eminent domain. Public use includes: schools, streets, highways, hospitals, government buildings, parks, water reservoirs, flood control, slum clearance and redevelopment, public housing, public theaters and stadiums, safety facilities, harbors, bridges, railroads, airports, terminals, prisons, jails, public utilities, canals, and numerous other purposes designated as beneficial to the public (Hill & Hill).

This broad definition was reviewed and established primarily based on two US Supreme Court cases. The first is a 1954 decision in the case of Berman v. Parker (Law. Cornell. Edu) and it was found that public use has a much more broad reach than simply building a roadway. In Berman, the case dealt with the District of Columbia Re-Development Act of 1945 and found it to be constitutional for the administrative agency to take the appellant’s building from him. The appellant owned property and used it for commercial purposes, to use urban slang, he was a “slum lord” and the agency wanted to re-develop the area.

The Supreme Court agreed that it was reasonable to “eliminate and prevent slum and substandard housing conditions—even though such property may be sold or leased to other private interests subject to conditions designed to accomplish these purposes” (Law. Cornell. Edu). After upholding the Re-Development Act, the definition of “public use” was expanded to cover the aforementioned “beneficial to the public”. Essentially the Supreme Court said that the requirements of the Fifth Amendment are fulfilled when the owner of the property receives his just compensation for the taken property.

Berman remained the standard for 50 years, but it was not the final say of the US Supreme Court when it comes to defining “Public Use”. The next case would further expand on the public portion of the definition in 2004 with the case of Kelo v. The City of New London. In this case, the Supreme Court expanded on the earlier Berman decision. The City of New London had established a development plan that “projected to create in excess of 1,000 jobs, which would increase tax and other revenues and would also revitalize an economically distressed city including its downtown and waterfront areas” (Minier, 2005).

After buying most of the property necessary for the development there were a few “hold out” landowners who refused to sell their property. The city wanted to use the power of eminent domain to take possession of the properties that belonged the holdout owners. The Supreme Court set precedent when it found for the City of New London and refused to overturn the ruling of the Supreme Court of Connecticut allowing for property to be transferred to a private owner for the use of economic development, which would benefit the community and therefore could be defined as public use.

This broadened the public use definition and has created a lot of controversy because it allows a for-profit, private entity to become the new owner of the taken property as long as it can be shown that the public will benefit. The use of eminent domain for this purpose will often result in public outcry and protest because the citizens don’t agree with the encroachment by private entities much less the government. As an example, what if Ford Motor Company approached the City of Kennesaw about building a new manufacturing plant for its popular F-150 pick-up line.

They are planning on creating 2,500 new jobs with the factory as well as relocating another 250 current employees to the area. Ford has acquired all the necessary parcels of land except for one house on one and a half acres that the owner refused to sell despite offers from the company to pay for the property and relocate the owner. The new plant would increase the tax base for the city and would bring people into the area into new homes (creating more business with construction) or into currently vacant homes.

Under the broadened definition of “public use” the property could be taken by the city as long as just compensation is paid to the owner, and the city could then sell the property to Ford Motor Company to complete the project. The Final element of eminent domain is “just compensation for the property which has been taken” (Smith, Greenblatt & Mariani, 2011). The receipt by the property owner of this “just compensation” is what closes out the requirements under the Fifth Amendment of the Constitution.

While the Berman ruling was significant towards defining public use, the Supreme Court felt it was important to speak of just compensation in its findings on the case. Just compensation is very subjective because usually the “hold out” property owner has established a value for his property that is not agreeable to the purchaser of the property; or in some cases the property has a “greater than cash” value to the property owner who is just determined not to sell it or have it taken away from him.

Initially the government will initiate the process of acquiring the property that they need to complete their project just as if they are attempting to purchase it as an independent buyer would. If there is a meeting of the minds and an agreement is reached the purchase is a simple procedure. The challenge comes in when the current owner and the government do not come to an agreement; it is at this point that the process of eminent domain will begin with the formal filing of a lawsuit by the government to take the property.

It is also important to note each state has it’s own laws in regards to eminent domain; for example, in one state the government may be required to pay any legal fees assessed in the case. As discussed earlier, if the parties were to come to terms on a purchase then eminent domain would not be applicable. The owner has the right to just compensation which is compensation for property taken under eminent domain that places a property owner in the same position as before the property is taken see also eminent domain.

NOTE: Just compensation is usually the fair market value of the property taken. Since the definition of public use has been broadened it the significance of just compensation increases because it is the greater judicial measure of having met the requirements of the Fifth Amendment. Further, “The owner of property is entitled to be put in as good a position pecunuarily as if his property had not been taken”. Fair Market Value as applied within just compensation is also subjective and controversial.

FMV (Fair Market Value) will consider current improvements to the property but it does not take into account sentimental value, historical significance, or future increase in value of the property. When addressing the just compensation issue the government usually has the advantage because if they have already decided to exercise the Power of Eminent domain then negotiations have usually ended and with the public use issue settled the property owner can only take the issue to court and hope for a favorable decision and award through arbitration or the court process.

While just compensation covers the property at fair market value it does not cover attorney’s fees related to the disputed acquisition of the property. The challenge here is that the family that has been displaced may find little satisfaction in being justly compensated (in the eyes of the government) for having their lives in an upheaval; their lives may be wrapped up in the community in which they have been rooted and eminent domain could cause an unjust hardship outside of the monetary issue. This is one of the examples that make eminent domain one of the most unpopular acts.

The Power of Eminent domain plays an important role in our communities. Although the Fifth Amendment was designed to afford protection to the property owners that protection has been diluted through a series of court rulings that have broadened definitions and allow Eminent domain to work in the governments favor. Essentially the government will prevail if it meets the four elements of the Fifth Amendment’s takings clause nor shall (1) private property be (2) taken for (3) public use without (4) just compensation.

When deciding the next course of action the property owner should be aware these elements and also should consider the worthiness of the challenge. Currently the Atlanta Falcons, a private sports franchise, are looking for a new stadium that will be built and operated in a joint venture with the City of Atlanta through a government appointed agency, The Georgia World Congress Center Authority and just compensation will play heavily in the activities of property acquisition.

There are two churches in the way of the proposed new stadium site, one of which wants to improve its standing and position and the other has age and historical significance. Friendship Baptist Church has historical significance in that it was started by slaves more than 150 years ago and is the “oldest black Baptist church in the city of Atlanta” and many important events/institutions began at this church including the fact that Spelman College was founded in the basement of the church and Morehouse College held classes there (Proctor, 2013).

At this point, Lloyd Hawk who is the Chair of the Board of Trustees for the church says that they want the significance of the church to continue to be at the forefront and they want some of the significance of the church, such as the Bell Tower, to remain but they are waiting to see what kind of offer they are going to be made. The other church, Mount Vernon Baptist, has conceded that they would sell and have stated that they want to do what is best for both the community and the church.

There will be other property owners who choose to hold out trying to get the “best deal”. This matter will be a good, relevant case study in eminent domain because it will involve all aspects of the disputed issues including public money, public use, increased economic impact, and private corporate involvement. The bottom line is that in the case of eminent domain there is no clear winner and there may be a clear loser. In some cases it may be a good thing for all parties involved; perhaps the property owner has no ties to the property and is ready to get out.

Taking payment for the property may be a way that they can walk away cleanly. But, the government, in my eyes will never be the loser because they will always get what they want. The homeowner may not want to surrender the property for any amount of money based on sentiment or any number of other reasons and being forced out of their gamily home is stressful. Or, the homeowner may feel that the financial (just compensation) falls short of their expectations or they may simply be greedy and want too much.

In either scenario the homeowner is clearly the loser if they lose their home under circumstance that they feel are less than ideal if the power of eminent domain prevails. Bibliography Hill, G. , & Hill, K. (n. d. ). Retrieved from http://legal-dictionary. thefreedictionary. com/public use Minier, D. (2005). Kelo v. city of new london. Retrieved from http://www. casebriefs. com/blog/law/property/property-law-keyed-to-dukeminier/eminent-domain-and-the-problem-of-regulatory-takings/kelo-v-city-of-new-london/ Miriam Webster. N. p. : n. p. , n. d.

Http://dictionary. findlaw. com/definition/just-compensation. html. Web. 04 Apr. 2013. . (n. d. ). Retrieved from http://www. law. cornell. edu/supct/html/historics/USSC_CR_0348_0026_ZS. html private property. (n. d. ). WordNet® 3. 0. Retrieved April 16, 2013, from Dictionary. com website: http://dictionary. reference. com/browse/private property private property. (n. d. ). Collins English Dictionary – Complete & Unabridged 10th Edition. Retrieved April 16, 2013, from Dictionary. com website:http://dictionary. reference. com/browse/private property

Proctor, A. (2013, March 22). Historic atlanta church sits on proposed site of new falcons stadium. Fox 5 News. Retrieved from Historic Atlanta church sits on proposed site of new Falcons stadium SCEG. (n. d. ). Retrieved from http://www. columbia. edu/cu/cssn/expansion/ Smenkowski, B. P. (n. d. ). Retrieved from http://www. britannica. com/EBchecked/topic/206470/Fifth-Amendment/296512/Takings In text (Smenkowski) Smith, K. B. , Greenblatt, A. , & Mariani, M. (2011). Governing states and localities. (3 ed. , p. 439). Washington, D. C. : Cq Staff Directories.

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Eminent Domain When Can the Government Take the Property of a Citizen Without His Consent?. (2017, Jan 12). Retrieved September 21, 2019, from https://phdessay.com/eminent-domain-when-can-the-government-take-the-property-of-a-citizen-without-his-consent/.