Eminent Domain: “Dark Corner of the Law” No More

Back in 1953, Lewis Orgel, author of the well regarded, two-volume treatise Valuation Under Eminent Domain, called eminent domain “the dark corner of the law.” And so it was. Outside of government, there were few eminent domain lawyers representing property owners, and not much interest in the subject. Even later, in the 1960s, when the number of eminent domain cases soared as the government took lots of property for highways and urban redevelopment, condemnation lawyers were pretty much a small fraternity, usually practicing solo or in small offices in large urban areas. But then things started to change. First came the tidal wave of takings for the Interstate Highway network , and for urban redevelopment. Then came controversies over inverse condemnation — especially of the regulatory takings variety. Takings law became a widely debated, controversial topic.

Then, in 2005 came the Kelo case, and all hell broke loose on the subject of the right to take, as the lay  American public began to understand that in the hands of judges, the Fifth Amendment phrase “public use,” limiting takings, didn’t mean “public use” and provided no protection against takings for manifestly private uses like malls and privately owned car factories. Rather, said Justice John Paul Stevens in his infamous 5 to 4 Supreme Court Kelo decision, “public use” meant “public purpose” which can mean anything the condemnor prognosticates, whether it happens or not.

If you are reading this post, you probably know what happened next. People came to realize that their homes were now fair game. They could now be taken from them in order to increase the local municipality’s cash flow and presumably, by a trickle down process benefit the private business community. But it didn’t happen. After destroying an unoffending lower middle-class community in New London, Connecticut, the prognosticated Kelo project was never built, and the local and state governments blew over $100 million for nothing — now, over 10 years after the Supreme Court decision, the subject land  is still sitting empty and unproductive.

But one consequence of the Kelo case has been the raised public consciousness of the eminent domain process and its abuses. Pipeline companies, for example, have discovered that these days they have small civil wars on their hands when they try to lay pipelines across farm land.

The latest is the emerging debate over eminent domain in the current presidential campaign. Donald Trump thinks that eminent is wonderful, while others disagree and are infuriated by that statement. In short, eminent domain has become a big-time issue in the presidential campaign. Now, we get word from  Florida, that the Conservative Solutions PAC is distributing large, 8 1/2 by 11 color flyers printed on heavy card stock, charging Trump with being wrong on his eminent domain position. (A tip of our hat to Prof. Frank Schnidman of Florida Atlantic University for this information). Will it make a difference? We have no idea. But the fact that eminent domain is being debated in this fashion on this lofty level demonstrates that we have come a long way from the days when folks were in doubt as to how to spell  “eminent.”

We are not sure whether the emergence of this topic as presidential campaign fodder is a good or bad thing. But as they say in Hollywood, “Say what you want about me, as long as you spell my name correctly.” So in case any of you folks are in doubt, it’s “eminent,” not “imminent.” Although, come to think about it, there are cases where eminent domain is imminent, and if delayed long enough, it can lead to litigation in which owners demand (and sometimes get) compensation for the unreasonable dealy. See Gideon Kanner, Condemnation Blight: Just How Just Is Just Compensation,  48 Notre Dame L. Rev.765 (1973). It’s a good read, folks even if it, like good wine, has done some aging. But it received a national prize from the Appraisal Institute (then the AIREA), so it can’t be all bad.