Eminent Domain and the Government’s Right To Take Property

It is important to understand that the power of eminent domain is not totally unlimited – there are cases in which the right to take can be challenged. The challenge arises when the basic eminent domain requirements for the taking are not satisfied. In order to take property from an individual property owner, a governmental entity must satisfy two requirements. One, the property must be used for public use, as defined in the federal constitution; and two, the property owner must be paid just compensation. There is also the issue of necessity, which is a sub class of public use. Necessity is the test that determines the amount of property needed to adequately undertake the public purpose. Notably: failure for the taking to fulfill the definition of public use could be a basis for stopping the taking of the property.

Public use, blighted property and the necessity requirement

In recent years, governmental entities have attempted to acquire property for redevelopment and revitalization projects by deeming entire areas and neighborhoods as “blighted” in order to satisfy the definition of public use. The term blight was first addressed in eminent domain law back in the 1950’s. This term referred to a deteriorating neighborhood or property – essentially meaning that the area did not serve its intended purpose within the community.

Today, much of the controversy concerning the public use definition stems from the concept of “blighted” property. This poses the ultimate question, “Is the property actually blighted”.

The term blight has created a perpetual battle ground in eminent domain law, where the heart of the battle is fought between property owners, who feel their property is not blighted, and condemning authorities. Governmental entities will overuse their power to exercise eminent domain and attempt to deem a lower grade neighborhood as blighted in order to acquire the property and have the area redeveloped in order to increase their tax base. Even though the area may not be technically blighted, governments will objectively call it that to settle the public use definition. In some states, but not all, the definition of blight lacks clarity making it easier for governments to misuse this designation in order to exercise their eminent domain authority. As a result, this area of eminent domain law is still very unsettled and interpreted differently by different states.

The case of Kelo v. City of New London, Connecticut most notably questioned the definition of “public use”, and whether or not property could be acquired through eminent domain for the sole purpose of economic gain, even if the property was not blighted. The case was heard at the US Supreme Court who ruled in a contentious 5-4 decision in favor of the city and ultimately granted each state the power for crafting language in their statutes and constitutions specific to public use, the blight definition and whether or not eminent domain could be used for the sole purpose of economic gain.

As far as the right to take is concerned, there is a necessity requirement. In many cases, the issue of necessity does not arise. Under certain circumstances, however, a governmental body may reach too far in terms of the property it is condemning. Although this claim would likely not prevent the project from occurring, it would force the condemning authority to reevaluate the amount of property necessary to fulfill the public purpose and therefore limit the amount of land they can acquire.

Can I prevent the Government from Taking My Land?

As a property owner, you have the right to challenge the government’s authority of eminent domain and this is the only way to stop the taking from occurring. Although this course of action is not recommended in most eminent domain cases, there are issues that arise that will justify this type of claim, such as the failure of the government to provide a proper public use; or failure of the property to meet with blight criteria as outlined in state statutes or constitution.