Eminent domain is a government tool to be used sparingly

The United States Supreme Court reawakened a political de- bate last year with its decision in Kelo vs. City of New London.

In that case, the Supreme Court upheld a Connecticut stat- ute that allowed the condemnation of private property for economic development purposes. Condem- nation-or as it is oftentimes re- ferred to, eminent domain-is the power invested in the government to take private property for a "public purpose" provided that fair compensation is first paid to the property owner.

The Kelo case has thrust to the forefront of the political agenda the issue of when it is ap- propriate for a government to take private property. The debate centers around what constitutes a "pub- lic purpose." While one would think it should be easy to establish abso- lutes, as with any sensi- tive issue, there are many nuances that make absolute pro- nouncements difficult. There are three basic contexts in which lo- cal government may contemplate eminent domain-and each pre- sents unique dilemmas.

It is important to note that state law requires any public project necessitating the acqui- sition of private property by emi- nent domain first be evaluated to ensure it has been designed to achieve the greatest public good and the least private injury. Con- sequently, alternative designs which minimize the need for the acquisition of private property are required to be considered before the ultimate decision to condemn property is reached. Even then, it is not an easy deci- sion to take private property to benefit the public good.

The first category of "public purpose" for which eminent do- main may be used is in the ac- quisition of private property for public infrastructure-a public road, sewer, water line, etc. These are the traditional govern- mental functions most people generally equate with a "public purpose." In these circum- stances, the use of eminent do- main-as a last resort, and only after the owner has been fairly compensated-is probably the least objectionable.

The second category involves the acquisition of private prop- erty to accommodate offsite in- frastructure improvements for a private development. For ex- ample, a housing development is contemplated, but the develop- ment requires that a road be wid- ened across private property to provide access to the develop- ment and reduce existing traffic congestion. At first blush, the analysis here seems easy-no way. Why should one private property owner relinquish their property so a private developer can benefit and make a profit by developing adjacent property?

But what about the situation where the road the developer is being required to widen is a road the community already needs to improve-at least partially-to accommodate existing traffic. In that situation, the alternative to widening the road is to have the city acquire the property (at city expense) and widen the road (at city expense). Is it pref- erable to have the developer bear a proportionate share of those costs and allow the city to use their precious tax dollars for other fundamental public pro- grams such as street mainte- nance, library services, and pub- lic safety?

The third eminent domain context involves redevelopment. In Connecticut, the site of the Kelo case, state law provides for the acquisition of private prop- erty for economic development purposes. In California, however, private property may be acquired for economic development pur- poses only when there is a find- ing that the project for which the property is acquired will help eliminate "blight." Blight may include physical deterioration, underutilization, or adverse eco- nomic conditions.

The nuance here is how much physical deterioration, underuti- lization, etc., is sufficient to es- tablish "blight." Is the elimina- tion of "blight" really a sufficient "public purpose" to justify the taking of private property from one party and giving it to another party for eco- nomic development pur- poses? If the elimination of blight is the ultimate goal, code compliance efforts, exterior rehabili- tation grants, and other programs may offer a superior solution.

It would be convenient to make absolute pronouncements about the government's use of eminent domain. But as with any constitutional issue, there are nu- ances that make such unqualified statements difficult. In some con- texts-such as public infrastruc- ture improvements-eminent domain (as a last resort and only after negotiations with the prop- erty owner fail) is a necessary government tool. In other con- texts, taking a private residence for private redevelopment may be difficult to justify.

One thing is clear: eminent domain is an extraordinary gov- ernment power that should be used only in extraordinary cases and then only for limited pur- poses. It is a tool to be used spar- ingly, as a last resort, and only after the property owner has been fairly compensated.