Eminent Domain - Law Essay Example

Published: 2018-03-11
Eminent Domain - Law Essay Example
Type of paper:  Essay
Categories:  United States Law
Pages: 6
Wordcount: 1511 words
13 min read

Eminent domain definition

The capacity of eminent domain is associated with a long-standing history with origin from the middle ages and the development of the British common law. The bill comprised of the U.S. constitution as a mechanism of government process of appropriating the private property given that the appreciation was meant to serve a ‘public purpose commonly referred to as the ‘public use.' Nevertheless, from the Fifth Amendment, the government was mandated to ensure ‘just compensation' for the majority of the property that had been taken and interpreted to imply that the government should pay market values of every property seized to their respective owners (Sackman et al., 2016). In recent times, the states across different levels have also started to stretch out their eminent domain powers of containing individual party's land seized for other party’s right particularly, if the other parties comprise of a bigger business enterprise with the capacity to bring large tax volumes in the long-run. This measure of the constitutionality of the practice of eminent domain remains ultimately questionable and by far highly controversial from morality.

Trust banner

Is your time best spent reading someone else’s essay? Get a 100% original essay FROM A CERTIFIED WRITER!

The eminent domain that comprises seizure of the private property, including land and real estate for the public use must be abolished while the powers of eminent domain must be limited to seizures that only focus on benefits towards the government projects and infrastructural amenities. In this regard, the capacity of eminent domain may still be used to establish public structures such as schools and roads but should never be manipulated for shopping purposes in a mall or apartments. The arguments based on this position are strongly worded with greater assertions of human rights convictions. For anyone that values property rights, private properties are absolute and must not be contingent to the public interests in case individuals perceive the benefits of retaining the property to outweigh the sellers of the same. They can either forfeit to sell the property or request more compensation in the long-run (Menzel, 1997). Anyone but owners must also be allowed to seize the property if and only if purported by the proprietor's consent.

The power of the government to take private property for public use

In many instances, governments do not provide market values as compensation for seizures attributable to the eminent domain, but in any case, they offer, there are other fundamental values that owners associated with their property being seized that are hardly quantifiable and that which owners alone can quantify correctly. For instance, an individual incidence of such seizures pertinent to Eminent Domain in history includes the perspectives of the case pursued in 2005 by the Kelo’s Supreme Court Case versus the New London Shows. A number of these have developed their desired homes from areas that were initially occurred at the point of their purchases. After the homeowners, in this case, had invested their lifetime's investments in the houses that were reclaimed by the government, they were liable to substantial losses from the act (Sackman et al., 2016). In essence, a coercive requirement that the parties accept market values of their houses was not sufficient in the compensation of such deeply integrated personal investments.

Besides, the ‘public interests' can also be perceived as a collectivist notion that assumes the facts that individuals alone exists and through the invoking of ‘public interest, the fact implies that the government must coercively support some of the private investment compared with others. The public policy of eminent domain has also recently been manipulated alongside the blatantly power-hungry scenarios with critical justifications to suit the selfish interest parties. The advocacy of eminent domain focuses on the redistribution of properties towards individuals that attempts to state the right of the government to create efficiency via the use of powers subject to eminent domain to achieve a scenario typically referred to as, ‘urban renewal.' (Edmondson, 1995).

Based on the theoretical economic perspective by Adams Smith however, indicates that free markets are responsible for achieving any objectives more effectively and efficiently about governments. Subsequently, a business thriving due to favors extended by the parties towards it via eminent domain does not succeed due to the functions that are better than their competitors within the market competition cycle. In this regard, such businesses may not be favored through the conventional forces of supply and demand hence, unable to get land that it strives to under the prospects of open and voluntary marketing exchanges. In this regard, the property owners strive to achieve what they do not gain through the appropriation of the ownership from the individuals that have earned them. The perspective of eminent domain that was supported by the Supreme Course case involving Kelo and the New London can, therefore, be regarded as a pure legalized theft (Sackman et al., 2016).

Eminent Domain: An Interpretation of the Supreme Court

The Supreme Court has three main interpretations of the concept of eminent domain. The Supreme Court is associated with three major difficulties filed in the interpretation of the Takings Clause as may be perceived in the description of the Taking Claus. The three top challenges include a decision of the timing of the government actions that constitutes the Taking; the definition of the 'public use' and the definition of just compensation. In this regard, the Supreme Court has been associated with a significant problem with the three constituents of the clause. In these circumstances, the jurisprudence of Supreme Court has also succeeded in the enlargement of government powers about the expenses of the private owners. Initially, the contemplation of Taking Clause was the assertion that compensation was a production of a physically seizure of private property by the federal government as opposed to instances when government regulations confined the manners in which resources could be used (Miceli & Sirmans, 2007).

In 1922 for example, the Supreme Court was, however, insisting on the compensation that must be provided in instances when the government regulations exceed the diminishing values of the private properties. The determination of the extent of the application of this seizure has also resulted in a vast pool of rules in place that have been recently referred to as ‘mess' by many commentators. The challenge in this scenario is the establishment of stable and sensible balances between the rights of individuals while enjoying and using the property for the interest of the government while safeguarding and enhancing the safety, health and general welfare of the community. In this regard, the Supreme Court holds that the regulations associated with land use and validated exercises of the police powers of the government must be executed. For instance, the government may always impose taxations and other fundamental burdens without due compensations including zoning decisions that create precipitous loss of value by properties that result into high noises in the highways in adjacent or stopping property owners from undertaking noxious uses (Sackman et al., 2016). Against this background, the Supreme Court considered the case of David Lucas and their property based in South Carolina. In this scenario, Mr. Lucas had bought two beachfront residential areas at exorbitant prices with the intention of building Single-family residential houses.

Cases of eminent domain

After two years, however, the legislature of South Carolina passed legislation that barred Lucas from establishing any permanent structures for habitation of the land thus rendering the property valueless. The reasoning that posits a regulation to becoming a taking after compelling property owners to a suffering from permanent physically ‘invasions' of their properties or resultant denial of owners to an economically viable land use, that was interpreted by the Supreme Court as a Taking. Another critical incidence involved Dolan and the City of Tigard. In the latter scenario, the Supreme Court also held that taking in which the municipal development plans conditioned a building structure and the expansion permits on business owners while dedicating a section of their property for the storm drainage and pedestrians was legally binding (Sackman et al., 2016). While reaching out to this decision, the Supreme Court established a new two-part test.

To avoid it being referred as a taking, a permit was conditionally imposed by the government. Subsequently, every individual must encompass an ‘essential nexus' as a legitimate interest of the state. Besides, it must be proportional to the projected effect of proposed development. This rule, however, prescribes to a notion of rough proportionality that has led to a chain of cases in the lower courts. In one of the cases, the Court of Appeal of Maryland provided that the conditional approval of the city from a subdivision of the sacrificing of the whole residential lot was posted as a recreational space and not considered a taking which was an argument inconsistent with the Dolan and Lucas case. In this regard, the new test has resulted into inconsistent and irreconcilable holdings (Sackman et al., 2016). Besides, there remains no ultimate consensus on the constituent of taking. This scenario leads to a different interpretation of the legal perspective of the taking and the eminent domain in its application to the seizure of private properties.

Cite this page

Eminent Domain - Law Essay Example. (2018, Mar 11). Retrieved from https://speedypaper.com/essays/101-eminent-domain-essay

Request Removal

If you are the original author of this essay and no longer wish to have it published on the SpeedyPaper website, please click below to request its removal:

Liked this essay sample but need an original one?

Hire a professional with VAST experience!

24/7 online support

NO plagiarism