Eminent Domain Rulings Are Frequently

Eminent Domain rulings are frequently minimally damaging to property owners, as only small portions of land have been seized for government use, yet there are also many cases a year where a government entity, be it state, local or federal utilizes eminent domain laws to seize or purchase property that includes domestic residences. In such cases the municipality often has the upper hand, with regard to purchase price as they can dictate the purchase price at any level the individual is willing to accept or set the rate of purchase at the tax assessed value of the property, a rate that is usually significantly lower than the fair market value of the property. Additionally, the municipality may argue in favor of a purchase price determined by the value of the land itself, not including the improvements upon it, including homes and other buildings as the value becomes very limited once the announcement of eminent domain seizure has occurred. In short, the government can set the rate of reimbursement to property owners, wherever they want it to be as they are going to be the only ones willing to pay for it, once they have decided they want it.

The Fifth Amendment provides the legal standard for eminent domain: "nor shall private property be taken for public use, without just compensation." (1) Thus, there are two constitutional requirements for the exercise of eminent domain: that the use be public, and that the owner receive just compensation.

(Talley 759)

The problem that arises from the circumstance is that "just" is not a very definitive description of compensation and individuals facing the might of a government may feel intimidated and overpowered to the point of accepting the first offer the government makers, as if it is a mandate rather than an offer. Additionally, the individuals that would be most likely to be hurt by the process would be people who had little or no concept of the fair market value of their property. This is likely to be people who have lived in their homes for a long time, such as the elderly, who also might have a stiff sense of respect for authority or the poor who have limited resources and often education to fight such authority.

Bright 83)

An additional issue regarding the use of eminent domain is that of the first constitutional stipulation, that the property be intended for public use. In recent years there have been many challenges to actions by municipalities with regard to what defines public use. As in the last 100 years municipalities have tended to loosely apply the term public to almost any purpose that denotes economic growth and development. "By the Twentieth Century it appeared that the narrow doctrine, where it still ostensibly existed, constituted at best a minor hindrance to liberal use of the eminent domain power. (103)" (Cohen 491) the frustrating part is that in many cases the property will actually be held by private developers who will likely stand to gain exponentially from the exchange made possible only because the municipality saw fit to utilize eminent domain laws to evict residents. A recent Supreme Court ruling has challenged the use of eminent domain with the intention of transferring property to private developers but, stands back on the idea that the entity in the case has ultimate discretion. Additionally any new restirciton does not change the fact that such exchanges have taken property from people in the past.

Talley 759)

The need to redress property owners with regard to either or both infringements of the constitutional stipulations of eminent domain is a clear and necessary need. The problem again being that individuals often feel helpless in the face of seeking due compensation from the government and may also be under the impression that having signed the contract initially they now have no recourse. Eminent domain has been so loosely utilized one author stresses that; eminent domain, land trusts, and restrictive covenants... have been used for years to evict the poor, keep vacant lands unused and segregate affluent neighborhoods.... Eminent domain, one author explained, "is the legal tool that has been used to devastate many urban neighborhoods, where people are forced to sell their homes and businesses to make way for freeways, convention centers and other megaprojects..."

Bright 83)

The utilization of eminent domain has been used to evict individuals to build malls, concentrated housing projects for both the poor and the affluent, and business parks, all of which presumably have higher property tax bases and therefore better serve the community where they are built than the homes that were there previously.

Having recently received a grant award, in the amount of 500,000 from the ACLU, Homeowners' Freedom, a 501 C3 organization dedicated to the assertion of property rights to owners intends to establish a legal defense fund for individuals who have received less than just compensation for property under eminent domain rulings. The fund will be budgeted thusly, 100,000 will be dedicated to the initial research and development that will be required to establish the names of injured parties and to advertise the service and screen potential former property owners. The remaining 400,000 will be set aside as a legal defense fund to assist in the litigation attempting to claim settlements for individuals who have lost properties.

The legal precedence will be applied to both the first and the second constitutional stipulations depending upon the case in question and the legal expertise of the attorneys retained to take on the government. The actions will be both individual and class action, depending on the research and the availability of cases. The service will be limited to lost homes, as apposed to lost businesses. Home owners who are still in the process of fighting eminent domain actions, will be offered limited legal assistance, based on need and funding availability. Individuals who receive settlements will be asked to donate a portion of the settlement, back to Homeowners' Freedom to assist in the development of a perpetual legal defense fund and potentially to grow the service. Clearly this service will be needed far into the future as many homes are lost, often in large blocks to developments that can only very loosely be titled "public."

The program's success will be determined by the completion of 10 successful settlements within one year. The amount of money associated with the settlements is of little importance but it is hoped that individuals will seek and obtain at or $greater than 100,000 in claims per property and contribute 10-20% back to the organization to perpetuate the ability of the organization to sustain itself through subsequent years and continue to fight for the rights of individuals.