Lawyer Monthly Magazine - January 2019 Edition

10 Essential Facts You Should Know About Eminent Domain is not so clear at all. “Public Use” is now widely interpreted by the Court’s to mean “public purpose,” a phrase many consider to be broader than the actual wording of the 5th Amendment. Needless to say, this issue is hugely controversial, and one which will continue to be very widely litigated. 7. JUST COMPENSATION This too would seem fairly clear, though, it too has engendered a great deal of litigation. The Constitution is silent as to, for example, in whose eyes the word “just” should be analyzed – the private property owner’s or the government’s? It is also not obvious on its face what “just compensation” encompasses. Must there be a cash payment in all cases of eminent domain, even if only part of a property is taken and the taking actually increases the value of the remaining land so as to make the value of that remaining land greater than the value of the original parcel? Does a private property owner’s subjective opinion of the “unique value” of the land taken pay a role? These and other questions are frequently the subject of dispute and of litigation. 8. DUE PROCESS AND EQUAL PROTECTION As we all know, these two powerful constitutional delegated, the eminent domain taking is then invalid and void. 3. THE FIFTH AMENDMENT – IN 1791 THE BILL OF RIGHTS, CONSISTING OF THE FIRST 10 AMENDMENTS TO THE CONSTITUTION, WAS ADDED TO THE CONSTITUTION The Bill of Rights is sometimes referred to as providing “anti- majoritarian” or individual pro- tections against the sovereign’s overwhelming power. (It was called a revolution for a rea- son). The last 12 words of the 5th Amendment provide only cer- tain of those protections from the sovereign’s exercise of its emi- nent domain power. 4. “PRIVATE PROPERTY,” NOT INDIVIDUALS, HAVE EMINENT DOMAIN RIGHTS The 5th Amendment’s eminent domain protections extend not just to individuals, they extend to all “private property”. The entire 5th Amendment consists of just one sentence. It begins with the words “No person”, repeats that phrase, and carries it through most of the Amendment. But then, at the last clause – the eminent domain clause – the phrasing shifts, and the object of the last clause, and of what now is being protected, is “private property”. Otherwise put: the constitutional protections afforded in the eminent domain context apply to all holders of “private property,” not just individuals. 5. “PUBLIC USE” AND “JUST COMPENSATION” The two key protections contained in the 5th Amendment each consists of just two words. But, to quote a great American poet a bit out of context, those two two-word phrases “contain multitudes.” Entire libraries are filled with case law and legal rulings interpreting these phrases, as you might expect. A great deal rides on what they mean and how they are applied to “facts on the ground.” 6. PUBLIC USE At first, this wording seems fairly straight-forward. But as the well- known U.S. Supreme Court case Kelo v. City of New London, 545 U.S. 469 (2005) made clear, it To better comprehend this law and how it works, here are 10 important facts to be aware of about eminent domain. 1. EMINENT DOMAIN IS AN INHERENT SOVEREIGN RIGHT The Constitution did not give the sovereign the right to take private property by eminent domain, that right preexists any Constitution. It is an elemental, intrinsic right of the sovereign, which includes both the federal and state government. 2. BUT MUNICIPALITIES, PUBLIC AUTHORITIES, AND PUBLIC UTILITIES ARE NOT SOVEREIGNS This means: the only eminent domain rights they have is what a sovereign has delegated to them. If one of these entities makes an eminent domain taking, which exceeds the scope of what the sovereign has Eminent domain is the governmental power to take private property for a public purpose. But, what does this mean exactly? When the federal, state or local government, or any agency possessing the power of eminent domain such as the Massachusetts Highway Department or the Massachusetts Bay Transportation Authority, need a piece of property for a public purpose, it can take the title to that property from the owner by law of eminent domain. Written By John E. Bowen, Rackemann, Sawyer & Brewster 40 Special Feature JAN 2019 www. lawyer-monthly .com