Brad Styer

Eminent Domain

            By definition Eminent Domain is “the governments right to take private property for the benefit of the public. The government is required to provide just compensation to the owner of the property being taken.” This definition has a few terms that should be looked at more closely to really understand the government’s rights and the rights of the public. First we will look at “the benefit of the public” and what exactly that entails. Next, how is “just compensation” evaluated? Finally, what are actually the public’s “rights”?

            According to eminent domain the government has the right to take public property for the “benefit of the public.” But what exactly does that mean and who determines that? This law was established by our founding fathers as stated in the Fifth Amendment of the United States Constitution and Article I, Section 19 of the California Constitution allowing private property to be taken by eminent domain only for a "public use."  According to the California Eminent Domain Handbook, “Traditional examples of "public uses" for which the government might exercise its power of eminent domain include such things as schools, roads, libraries, police stations, fire stations and similar public uses.”  Over time however the term “public use” has become more broad. Courts have held up that eminent domain can be used on projects that are not actually open to the public. For example a water treatment facility could be built on land taken by eminent domain. The courts have even gone as far as to allow eminent domain to be imposed on projects that will increase tax revenue even though ownership of the project will be private.

            What is considered “Just Compensation” and how is it determined? The government has attached the term “Fair Market Value” to evaluating “Just Compensation.” Fair Market Value, according to the California Eminent Domain Handbook is "The fair market value of the property taken is the highest price on the date of valuation that would be agreed to by the seller, being willing to sell but under no particular or urgent necessity for doing, nor obliged to sell, and a buyer, being ready, willing and able to buy but under no particular necessity for so doing, each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available." Once the Fair Market Value is evaluated, the findings are presented to a jury and they determine if indeed the Fair Market Value is “Just Compensation.” In California, loss of business can be incorporated into the “Just Compensation.” According to the California Eminent Domain Handbook this loss is determined by the “sustainable income flow generated by the business.”

            Because Eminent Domain is included in the fifth amendment of the United States Constitution it is a very powerful right given to the government. However it can be challenged. Most challenges are a result of the government not taking the proper steps required by Eminent Domain Law. There are many steps to the process and every case goes through the court system. If a Fair Market Price cannot be agreed upon the case will go to trial and be decided by a jury. Because the law favors the government, most challenges just delay the government taking of property opposed to preventing it.

Eminent Domain is a very powerful and unfortunately necessary law. Nobody wants to have their private property taken from them even if it’s for the “Benefit of the Public.” With that said, we live in very populated areas and the public has needs and sometimes we require other people’s land to fulfill those needs. Hopefully you and I will never have to deal with Eminent Domain in our lifetime, but we should all be aware of it and our rights.

Sources:

: California Eminent Domain Law Group.  California Eminent Domain Handbook.  1997.  15 April. 2013 <http://www.eminentdomainlaw.net/power.php>.