What Is Eminent Domain — and Does the Government Really Have the Right to Take Your Property?

by Leigh A. Morgan
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Under the U.S. Constitution, the federal government has several explicit powers, including the power to levy taxes and maintain a military force. You probably learned about these powers in your history or civics class.

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What you may not know is that the government has many powers that aren't explicitly granted by the Constitution. Eminent domain is one of them.

What Is Eminent Domain?

Eminent domain is a government power used to take private property and use it for public purposes. Although the concept has existed since the founding of the United States, it wasn't until 1876 that someone filed a challenge to the government's authority in these matters.

In Kohl v. United States, the plaintiff challenged the notion that federal officials could seize his land and use it to build a post office and other government buildings. The case went all the way to the Supreme Court, but the government prevailed in an 8-to-1 decision. According to the majority opinion, the government's power to appropriate private property for the public good is “essential to its independent existence.”

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When Can the Government Take Private Property?

The government can take private property when it demonstrates that the property will be used for public purposes. This is known as a "taking." If officials meet their burden, the government can condemn a property and take the title. Here are two examples of how the federal government has used eminent domain to promote economic development or improve public infrastructure.

Kelo v. City of New London

In Kelo v. City of New London, Susette Kelo sued New London, Connecticut, for trying to acquire her property and incorporate it into a redevelopment plan for the city. As part of the plan, New London officials intended to sell Kelo's property to another individual.

Kelo believed that transferring the property to an individual would violate the principles of eminent domain. In a 5-to-4 decision, the Supreme Court held that the redevelopment plan would stimulate economic growth, making it a permissible use of eminent domain.

Penn Central Transportation v. New York City

The Penn Central Transportation Co. v. New York City case is a bit different. PCT sued New York City after the Landmark Preservation Commission denied its application to construct an office building above Grand Central Terminal. Attorneys for PCT contended that the denial constituted an "unjust taking" of private property.

During the case, the Supreme Court used a new test to determine if a taking qualifies as unjust. Since PCT could still generate a return on its Grand Central operations, the court found that the denial of its application didn't cause enough economic harm to violate the principles of eminent domain.

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Is Eminent Domain Still a Law in All States?

Yes. Every state has eminent domain laws on the books. However, some states exert more control over the taking of private property than others. For example, the Kelo vs. City of New London verdict prompted Utah, Missouri, Pennsylvania, Maryland, New Jersey and Rhode Island to update their laws. All six states have since limited the use of eminent domain for private gain.

For example, Pennsylvania passed the Property Rights Protection Act. Under this act, government officials must use a narrow definition of "blight" to determine if a property should be condemned and converted to public use. The Property Rights Protection Act also prohibits the government from declaring agricultural land "blighted" unless an approval board determines that it's necessary to promote community health and safety.

What Does the Fifth Amendment Say About Eminent Domain?

Although the Constitution doesn't give the government the right to take private property, the Fifth Amendment includes a "takings clause." According to this clause, the federal government can't take an individual's property without providing just compensation.

What Property Is Exempt From Eminent Domain?

Exemptions are based on state law, so it depends on where you live and what type of property you own. For example, some states prohibit the government from taking property that's used to operate a cemetery.

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