Term Paper on "Eminent Domain Rulings Are Frequently Minimally Damaging"

Term Paper 4 pages (1368 words) Sources: 3 Style: MLA

[EXCERPT] . . . .

Eminent Domain rulings are frequently minimally damaging to property owners, as only small portions of land have been seized for government use, yet there are also many cases a year where a government entity, be it state, local or federal utilizes eminent domain laws to seize or purchase property that includes domestic residences. In such cases the municipality often has the upper hand, with regard to purchase price as they can dictate the purchase price at any level the individual is willing to accept or set the rate of purchase at the tax assessed value of the property, a rate that is usually significantly lower than the fair market value of the property. Additionally, the municipality may argue in favor of a purchase price determined by the value of the land itself, not including the improvements upon it, including homes and other buildings as the value becomes very limited once the announcement of eminent domain seizure has occurred. In short, the government can set the rate of reimbursement to property owners, wherever they want it to be as they are going to be the only ones willing to pay for it, once they have decided they want it.

The Fifth Amendment provides the legal standard for eminent domain: "nor shall private property be taken for public use, without just compensation." (1) Thus, there are two constitutional requirements for the exercise of eminent domain: that the use be public, and that the owner receive just compensation.

(Talley 759)

The problem that arises from the circumstance is that "just" is not a very definitive description of compensation and individuals facing the might of a government may feel intimidated and overpowered to the point of accepting the first offer the government makers, as if it is a mandate rather than an offer. Additionally, the individuals that would be most likely to be hurt by the process would be people who had little or no concept of the fair market value of their property. This is likely to be people who have lived in their homes for a long time, such as the elderly, who also might have a stiff sense of respect for authority or the poor who have limited resources and often education to fight such authority.

Bright 83)

An additional issue regarding the use of eminent domain is that of the first constitutional stipulation, that the property be intended for public use. In recent years there have been many challenges to actions by municipalities with regard to what defines public use. As in the last 100 years municipalities have tended to loosely apply the term public to almost any purpose that denotes economic growth and development. "By the Twentieth Century it appeared that the narrow doctrine, where it still ostensibly existed, constituted at best a minor hindrance to liberal use of the eminent domain power. (103)" (Cohen 491) the frustrating part is that in many cases the property will actually be held by private developers who will likely stand to gain exponentially from the exchange made possible only because the municipality saw fit to utilize eminent domain laws to evict residents. A recent Supreme Court ruling has challenged the use of eminent domain with the intention of transferring property to private developers but, stands back on the idea that the entity in the case has ultimate discretion. Additionally any new restirciton does not change the fact that such exchanges have taken property from people in the past.

Talley 759)

The need to redress property owners with regard to either or both infringements of the constitutional stipulations of eminent domain is a clear and necessary need. The problem again being that individuals often feel helpless in the face of seeking due compensation from the government and may also be under the impression that having signed the contract initially they now have no recourse. Eminent domain has been so loosely utilized one author stresses that; eminent domain, land trusts, and restrictive covenants... have been used for years to evict the poor, keep vacant lands unused and segregate affluent neighborhoods.... Eminent domain, one author explained, "is the legal… READ MORE

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