The public outcry over eminent domain continues. Claims of "eminent domain abuse" fill today's popular media; a January 21 article by Steve Cook, Eminent Domain is Alive and Well, claims 2 in 3 Americans oppose eminent domain.
What so often gets lost in the shuffle is that most of the outrage focuses on a narrow aspect of eminent domain: redevelopment efforts that involve condemning private property and transferring it to another private owner. This is what sparked debate in the Kelo case, and it is making major headlines in New York, where the "Atlantic Yards" drama involves plans to build a new stadium for the New Jersey Nets basketball team in Brooklyn (there's an entire blog devoted to the Atlantic Yards saga).
But let's not forget that a large portion of the eminent domain that occurs involves traditional infrastructure projects: roads; rail lines; utilities; etc. And while voluntary acquisitions for such projects may be preferable, where that is not possible, eminent domain makes the difference between having new (or improved) infrastructure and not having it. Would 2 in 3 Americans really oppose eminent domain in those situations?
In Mr. Cook's article, he claims that "there are indications that as stimulus funds make their way to the state and local levels, more property than ever may be at risk." To me, this frames the issue incorrectly. California, in particular, is in dire need of infrastructure improvements.
If stimulus dollars help bring some of those improvements to reality -- and it appears that is happening -- we should view that as good news. Some property will be condemned in the process. However, as long as the condemning agencies treat owners fairly and pay just compensation, I simply can't see using stimulus dollars in this manner as "eminent domain abuse."
In the end, I continue to believe that the real focus of eminent domain commentators should be on ensuring fair compensation for both property owners and business owners facing eminent domain -- not on attacking eminent domain itself. And, especially in cash-strapped California, if federal stimulus dollars can get some much-needed projects postponed by our state budget crisis back on track, we should be happy, not outraged.
Rick Rayl is an experienced litigator on a broad range of complex civil litigation issues. His practice is concentrated primarily on eminent domain, inverse condemnation, and other real-estate-valuation disputes. His public ...
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