The Threat of Eminent Domain, not so bad?0
The political pendulum eternally swings, shifting government actors in places of power. Whether small adjustments on a local level or the macro tectonic shift that comes with a new administration that starts to take shape every fourth or eighth spring, these changes reverberate and inexorably ripple their own transformations within the law. As a society we always hope that these advances in the law protect us from governmental theft of our property and freedom. The Fifth Amendment nevertheless still authorizes the government to take control of property for public use provided they give compensation (galvanizing work for an eminent domain attorney to protect your property, or at least get you the best deal). While it appears at first glance that the government has placed a robust restraint upon us by giving obscurely broad standards and expanding the reach of eminent domain in Supreme Court cases like Kelo, looking deeper at maneuvers made by the states and more recent decisions the law’s current is actually flowing in our favor.
In the 34 some years since Penn Central v. New York justices have been setting the boundaries and filling the holes of eminent domain law. It could be argued that unclear standards pose dangers to the public and gaps still need to be filled. Nolan v. Calif Coastal simply gave us the nexis requirement while not really defining it, and Dolan v. City of Digard superficially stated that any old nexis would not suffice, it had to be strong. Yet, the greater concern is the broad limits set by Kelo v. City of New London, allowing the government to take a house if it is in the economic interest of the state to do so (the fear being that it would always be in the monetary interest of the government to take property).
Yet, this concern is offset by new trends in the law. Ohio doesn’t follow Kelo on state law grounds and California, Colorado, Massachusetts, and New York declined to extend it further. Additionally, the recent decision Sackett v. Environmental Protection Agency ripped power away from the executive branch by holding that government agencies like the EPA could not take property away on its own without judicial review. However, in spite of the trend for more favorable cases, the threat of government theft is still very real, and to protect your property, or to make sure you get the best price for it, it is always best to hire a good eminent domain attorney.