Balancing Values in Eminent Domain Cases: A Look at Private Property Rights and Public Benefits

March 9, 2005
Paul Malmfeldt
The Journal of the Business Law Society

Driving through Chicago, it is a virtual guarantee that one will be stuck in traffic at some point, no matter what time of day or night. It is hard to imagine how bad the traffic would be had the interstate highways never been constructed. And without the ability of the government to condemn private property through the power of eminent domain, most major American transportation projects could never have been undertaken. While the right to control private property is a deep-rooted American value, most of us would agree that we are all better off as a result of the government's ability to assert eminent domain in cases where there is a pronounced public use benefit.

The drafters of the Fifth Amendment had the wisdom to afford our governments the power of eminent domain. Yet, it is hard to imagine that they would have approved of the condemnation of well-maintained seaside houses so that luxury condos and a hotel could be constructed. After all, the drafters chose the clear-cut language “public use” rather than such language as “when the government wishes to spruce up a neighborhood and/or hopes to appease a powerful corporation.”

The later appears to describe New London’s primary motivation in Kelo v. City of New London (please see my post under Real Estate from February 24th). In the American Planning Association’s amicus brief in support of condemnation, the authors argue that to require a city to demonstrate a greater public benefit than vague promises of economic development and increased tax revenues would be to hinder urban redevelopment efforts. They further argue that since land in downtown areas is harder to acquire than land on the periphery, to prohibit governments from condemning "obsolete", though otherwise safe and useful private property in desirable locals would be to encourage sprawl.

Urban renewal and the prevention of sprawl may be desirable goals. However, it is inappropriate for a government to achieve these goals by condemning private property that is safe, well-maintained, and useful. In these instances, the potential for abuse in distinguishing between obsolete and productive property is limitless.

Furthermore, the right to own and control property is a significant component of one’s individual liberty, a core American value. One interpreting the Fifth Amendment in good faith should find that the value inherent to respecting private property rights greatly outweighs the value to the public in this instance: those primarily benefitting would be out-of-town Pfizer executives hoping for views of the Atlantic from hotel rooms and a prospective hotel owner, rather than the public itself.