The Gambit of Eminent Domain


by Dan Krell ©2009

Many contend that the use of eminent domain is increasingly abusive, as highlighted by the case of Kelo v. New London. If you recall, Kelo v. New London involved the taking a private land to be used by developers to revitalize a Connecticut waterfront into upscale homes, a commercial district, and a large (private) research campus. The case was fought through the court system all the way up to the Supreme Court of the United States (SCOTUS). In 2005, the SCOTUS ruled 5-4 in favor of the municipality, New London, CT, with the majority accepting an expanded interpretation of “public use.”

Eminent Domain is a common law process that allows the government (local or federal) to take real property without the owner’s permission. The right of eminent domain is given to governments by the United States Constitution, as specified in the Fifth Amendment. Typically, land that is taken is used for public roads (battles over the ICC are still fresh in our memories), public schools, public utilities, and other public uses. Generally, if the land owner refuses the initial offer for their property, the government initiates condemnation proceedings to take control of the land.

Since the case of Kelo v. New London, similar cases have emerged up across the country. Two high profile cases in New York are being fought and again raising the question about eminent domain abuse.

A case ruling in favor of the State involves the development of a Brooklyn neighborhood into “Atlantic Yards” (Atlantic Yards is to include commercial and residential development, including the Barclays Center- where the New Jersey Nets will call home). Property owners who fought the condemnation of their property for the development of Atlantic Yards were thrown a major obstacle in their fight when they learned that the New York Court of Appeals upheld the condemnation. Additional appeals are probable.

The other case concerns the expansion of Columbia University in New York City. The university’s expansion rests upon the ability to purchase property and land in specific neighborhoods that they feel is appropriate for their needs. When several property owners refused to sell to the university, the State stepped in to condemn the property to force them to sell. Recently, a New York State appellate court ruled against the State (of New York) which possibly characterizes the abuse of eminent domain by abetting Columbia University in acquiring land that was ruled to have no public purpose.

A recent local case of eminent domain has some raising their eye brows as well. Earlier this year, Governor O’Malley asserted the use of eminent domain to save the Preakness Stakes by attempting to force Magna Entertainment to sell Pimlico, Laurel and Bowie race tracks to the State. Questions whether this use of eminent domain is in the spirit of the Constitution may be moot as the race tracks may be sold to other local interested parties.

Eminent domain continues to be a complex and deeply debated issue. If eminent domain’s expanded definition is to allow commercial development for the public good, then consider a recent Wall Street Journal report (November 11, 2009; “Pfizer and Kelo’s Ghost Town”): The local and state government spent $78 Million to raze the Kelo neighborhood, only to find out that developers pulled out. The land is now vacant and without any tax benefit.

This article is not intended to provide nor should it be relied upon for legal and financial advice. This article was originally published in the Montgomery County Sentinel the week of December 21, 2009. Permission to use this article is by written consent only. Copyright © 2009 Dan Krell

2 Replies to “The Gambit of Eminent Domain”

  1. Eminent domain is a sobering experience. Private property owners facing the threat of eminent domain quickly learn that they are not standing on a level playing field legally, economically or politically.

    Among other lessons, there is a lot of play in the “just” of “just compensation.” The power of eminent domain brings with it a sense of entitlement. At that point, property owners are merely an obstacle to be swept aside — when, in fact, they possess the key asset coveted by government and the corporation.

    But property owners can fight back. Our two-year battle against Houston-based Spectra Energy which seized our property rights for an underground gas storage field led to the development of a website which has begun to attract whistle blowers inside the energy industry. We are collaborating and helping property owners in many states. For info, visit the site: http://www.spectraenergywatch.com/blog/

    By the way, our new neighbor, Spectra Energy, has received two Notice of Violations for “unlawful conduct” over the past two months related to emergency shutdowns and emissions at its storage field in Bedford County, PA. Reports of contaminated water supplies are on the rise since they began operations.

    Like Kelo and Atlantic Yards, the ripple effects of eminent domain are never over.

  2. Although there may be legitimate uses for eminent domain, the potential for abuse is compelling.

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