What is Eminent Domain?

09/17/20

     It goes without saying that Eminent Domain is a heady power. In fact, it is one of the most aggressive forms of State action. This power, delineated in the Eminent Domain Procedure Law (EDPL), originated with the Crown of England, when the king was entitled to take possession of his subjects’ property at his whim. 

     Realizing the potential for governmental abuse, when the Founders created the Constitution over 200 years ago, they included a “takings clause,” which attempted to strike a balance by allowing the government to exercise its Eminent Domain power, albeit in a limited manner. In particular, while the Constitution does grant the government the ability to condemn and acquire a private person’s property, the municipality is required to justly and fairly compensate the property owner, as well as utilize the property for a public use. Over the last 75 years, the “just compensation” and “public use” provisions of the “takings clause” have been interpreted and vetted by the courts.  

     In 2005, the Supreme Court held in its seminal case, Kelo v. New London, that a municipality could take private property for a private use, as long as it was for a public good. Click here for additional information. This pivotal case diverged from decades of precedent, which held that a municipality could only acquire private property for a public purpose. This overly broad interpretation of the “takings clause” held that a government could take a person’s private property and subsequently re-sell the property to a private individual/entity to be redeveloped for that private individual/entity’s personal profit. More specifically, the Supreme Court ruled that economic development is considered a public purpose under eminent domain law.

     This slippery slope of enabling overly broad governmental entanglement has become extremely relevant. We are entering a very dangerous time in which the government has directly affected our businesses and private lives. It seems as if the government has creeped its way into all facets of our lives – whether it be requiring businesses to close, imposing extreme restrictions on business’ operations, and restricting our ability to freely move around our neighborhoods and commuting from state to state. However, the government’s attempts to control our actions and our livelihoods have not gone unopposed. Just recently, landlords sued the Governor regarding his prohibitions on evictions. Click here to read more. In addition, gym and fitness studios have sued for the right to open their facilities. Both of these efforts eventually proved unsuccessful. Click here for more information.

     The government’s expansion of power has now extended even further – the Governor issued an Order defining how restaurants may operate and limiting its operations in New York City. See this article for additional information. Here is another article for you to review.

     The main concern with these recent government actions – which have a tremendous impact on our property, businesses, and individual rights – is that they are not considered “takings” and therefore, are wholly unregulated by the “takings clause.” It is vital that we remain vigilant and prepared to defend our businesses, property and private rights against an overly burdensome and meddling government. If you feel that any of your rights may have been violated in this post-Covid19 world, please do not hesitate to contact us for a free consult.