Eminent Domain FAQ

View Eminent Domain/Condemnation FAQ
Eminent Domain FAQs about Eminent Domain Condemnation Law.

A public furor followed the recent Kelo decision by the Supreme Court of the United States, Kelo v. City of New London, 125 S.Ct. 2655 (2005). Yet, after the dust had settled, many commentators realized that there was nothing new about the Kelo case. The eminent domain power, as construed by the federal and state courts over decades of decisions, was virtually limitless.It didn't matter whether the taking was seemingly nonsensical or even bordered on the government bending to the economic carrots offered by multinational corporations. It also didn't matter that the taking was in connection with fanciful projects having little possibility of success. If the government wanted to take property, any purpose would do. It is (and, as this article goes to press, still is) the law that property could be taken by the government for a standard governmental purpose (park, recreation, road, etc.). What so alarmed the public (and what Kelo reaffirmed ) was that property could be taken by the government from one private owner and then given to another private property owner under economic development plans premised on the most remote concepts of blight, public purpose or public benefit.

A flurry of legislation and proposed referenda ensued throughout the country including New York where numerous bills have been submitted. The problem with most of this legislation is that it's impractical.Legislation severely limiting the eminent domain power is not practically workable and may rest on tenuous legal ground. The government needs this broad power to accomplish a broad range of legitimate purposes. When you try to limit the governmental power, it will impede the proper exercise of government in the pursuit of the public good. Simply legislating that you cannot acquire property in an economic development project to give it to a private party to develop would be counterproductive. There are blighted areas which do require acquisition of property by the government and where only private interests could accomplish the project. Otherwise, the property could not be assembled. It makes good sense to give it to one responsible, economically powerful sponsor who can bring the project to fruition. Eliminating this power would consequently eliminate a powerful tool to address localized economic blight.

Where most of the legislation goes wrong is in failing to realize why the power can be abused in the first place. It is not being abused because of the exercise of the power, but because the exercise of the power under current legal standards and, in particular the enabling legislation, does not accomodate a full review and scrutiny by the courts.