Eminent Domain When Can the Government Take the Property of a Citizen Without His Consent?

Melanie Carter Political Science 2212 State & Local disposal W01 Spring 2013 Eminent battleground field When Can the Government Take the Property of a Citizen Without His Consent? One of the more disputable Government actions is its ability to exercise the power of towering country to progress to control of dimension that belongs to an individual or buck private entity against their leave behind. Eminent airfield, broadly down the stairsstood, is the power of the order to seize private lieu without the possessors consent (WordNet).This report allow examine the elements of lofty bowl and what protections be in place for citizens that whitethorn be make by it, identify types of transactions that are typic all(prenominal)y involved and accepted in uplifted domain faux pass and discuss what the citizens should expect to receive as compensation even though they have lost the office due to near of the broad definitions of the elements. Any time the governing is taking the plaza of an individual, without his consent, it is a controversial matter.Many politicians and citizens agree that it was necessary to establish a method of acquiring position for the needs of the common rock-steady of the community even when thither is a lone consent out property possessor. It has been held that the power of proud domain can only be exercised after meeting the protection standards established under the 5th Amendment of The United States Constitution. We have been conditioned through the media that the Fifth Amendment protects us against self-incrimination I plead the fifth.Self-Incrimination is an of the essence(p) aspect but most people male parentt realize that the Fifth Amendment has a taking cla engross designed to protect the property owners. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, drop in cases arising in the land or naval forces, or in the Mi litia, when in actual attend in time of War or existence danger nor shall any person be subject for he same offence to be twice put in jeopardy of life or limb nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law nor shall private property be interpreted for humankind uptake without expert compensation (United States Constitution Fifth Amendment). The Amendment initially only applied at a federal level until pass shape up of the Fourteenth Amendment in which due process and equal protection were make applicable to the states.Taken at face value, the Fifth Amendment taking cla practice can be broken rarify into four basic elements Nor shall (1) private property be (2) taken for (3) general recitation without (4) unspoilt compensation The first is private property, it is self-explanatory and the definition is fairly narrow today although its prior applications were more gabby f or example one of the biggest topics with emancipation of slaves was the one time belief that they were seen as property and not as individuals and this status protected the property owner.It was this view that brought about the Emancipation Proclamation and passage of the Thirteenth Amendment. secret property is defined as Private property N-land or belongings owned by a person or group and kept for their exclusive use (Dictionary. com) The next element is the taking of the property. The property my be taken from the owner without their consent in order to make an improvement of some air that will have a beneficial result for the community.Its important in any case to note that property owner is not only in jeopardy of losing their property to the government but that it may withdraw to a private developer for the purpose of an improvement that might add value to the urban center for example in the form of taxes. In the case of rarified domain the property is taken without th e consent of the owner of the property. If the owner were to consent or agree to a payment then it is simply a transaction and eminent domain is no longer applicable.The third element is the requirement that the property is taken for in the public eye(predicate) use and because of the definition applied for public use it is the most controversial. While the party who is surrendering his property under eminent domain will almost al delegacys be upset or offended, the remainder of the citizens will typically may not take issue with the process as long as they see the wellbeing for themselves and their communities. Improved infrastructure much(prenominal) as road mental synthesis, bridge building, water shed protection and statement are examples of these takings that are agreeable with most of the people.The broad definition of national Use in Eminent domain cases as applied today Public use n. the only purpose for which private property can be taken (condemned) by the government under its power of eminent domain. Public use includes schools, streets, highways, hospitals, government buildings, parks, water reservoirs, flood control, slum clearance and redevelopment, public housing, public theaters and stadiums, safety facilities, harbors, bridges, railroads, airports, terminals, prisons, jails, public utilities, canals, and numerous other purposes designated as beneficial to the public (Hill & Hill).This broad definition was reviewed and established primarily base on devil US independent hail cases. The first is a 1954 decision in the case of Berman v. Parker (Law. Cornell. Edu) and it was found that public use has a much more broad reach than simply building a roadway. In Berman, the case dealt with the District of Columbia Re-Development Act of 1945 and found it to be constitutional for the administrative agency to take the appellants building from him. The appellant owned property and used it for technical purposes, to use urban slang, he was a slum lord and the agency complimentsed to re-develop the area.The Supreme Court agreed that it was reasonable to eliminate and prevent slum and substandard housing conditionseven though such(prenominal) property may be sold or leased to other private interests subject to conditions designed to accomplish these purposes (Law. Cornell. Edu). After upholding the Re-Development Act, the definition of public use was spread out to cover the aforementioned beneficial to the public. Essentially the Supreme Court said that the requirements of the Fifth Amendment are fulfilled when the owner of the property receives his just compensation for the taken property.Berman remained the standard for 50 days, but it was not the final say of the US Supreme Court when it add ups to defining Public Use. The next case would further expand on the public portion of the definition in 2004 with the case of Kelo v. The City of New London. In this case, the Supreme Court expanded on the earlier Berman decision . The City of New London had established a development plan that intercommunicate to create in excess of 1,000 jobs, which would improver tax and other revenues and would also revitalize an economically plagiarizeed city including its downtown and waterfront areas(Minier, 2005).After buying most of the property necessary for the development in that respect were a a few(prenominal) hold out landowners who refused to sell their property. The city wanted to use the power of eminent domain to take possession of the properties that belonged the holdout owners. The Supreme Court set precedent when it found for the City of New London and refused to overturn the ruling of the Supreme Court of Connecticut allowing for property to be transferred to a private owner for the use of economic development, which would benefit the community and therefore could be defined as public use.This broadened the public use definition and has created a lot of controversy because it allows a for-profit, private entity to become the bracing owner of the taken property as long as it can be shown that the public will benefit. The use of eminent domain for this purpose will often result in public outcry and protest because the citizens dont agree with the encroachment by private entities much less the government. As an example, what if Ford get Company approached the City of Kennesaw about building a new manufacturing plant for its popular F-150 pick-up line.They are think on creating 2,500 new jobs with the factory as well as relocating another 250 current employees to the area. Ford has acquired all the necessary parcels of land except for one house on one and a half earth that the owner refused to sell despite offers from the company to pay for the property and relocate the owner. The new plant would increase the tax base for the city and would bring people into the area into new homes (creating more business with construction) or into currently vacant homes.Under the broadened definition of public use the property could be taken by the city as long as just compensation is paid to the owner, and the city could then sell the property to Ford Motor Company to complete the project. The Final element of eminent domain is just compensation for the property which has been taken (Smith, Greenblatt & Mariani, 2011). The receipt by the property owner of this just compensation is what c dope offs out the requirements under the Fifth Amendment of the Constitution.While the Berman ruling was significant towards defining public use, the Supreme Court felt it was important to tattle of just compensation in its findings on the case. Just compensation is very subjective because usually the hold out property owner has established a value for his property that is not agreeable to the emptor of the property or in some cases the property has a greater than cash value to the property owner who is just determined not to sell it or have it taken away from him.Initially the gov ernment will initiate the process of acquiring the property that they need to complete their project just as if they are attempting to obtain it as an independent buyer would. If there is a meeting of the minds and an agreement is reached the purchase is a simple procedure. The challenge comes in when the current owner and the government do not come to an agreement it is at this point that the process of eminent domain will begin with the formal file of a lawsuit by the government to take the property.It is also important to note each state has its own laws in regards to eminent domain for example, in one state the government may be required to pay any legal fees assessed in the case. As discussed earlier, if the parties were to come to terms on a purchase then eminent domain would not be applicable. The owner has the right to just compensation which is compensation for property taken under eminent domain that places a property owner in the same position as before the property is t aken see also eminent domain.NOTE Just compensation is usually the fair securities industry value of the property taken. Since the definition of public use has been broadened it the significance of just compensation increases because it is the greater judicial measure of having met the requirements of the Fifth Amendment. Further, The owner of property is empower to be put in as good a position pecunuarily as if his property had not been taken. Fair Market Value as applied within just compensation is also subjective and controversial.FMV (Fair Market Value) will consider current improvements to the property but it does not take into discover sentimental value, historical significance, or future increase in value of the property. When addressing the just compensation issue the government usually has the advantage because if they have already decided to exercise the Power of Eminent domain then negotiations have usually ended and with the public use issue settled the property owner can only take the issue to court and hope for a favorable decision and submit through arbitration or the court process.While just compensation covers the property at fair market value it does not cover attorneys fees related to the disputed acquisition of the property. The challenge here is that the family that has been displaced may find little satisfaction in being justly compensated (in the eyes of the government) for having their lives in an upheaval their lives may be wrapped up in the community in which they have been grow and eminent domain could cause an unjust hardship outside of the monetary issue. This is one of the examples that make eminent domain one of the most unpopular acts.The Power of Eminent domain plays an important role in our communities. Although the Fifth Amendment was designed to afford protection to the property owners that protection has been diluted through a serial of court rulings that have broadened definitions and allow Eminent domain to work in the governments favor. Essentially the government will prevail if it meets the four elements of the Fifth Amendments takings clause nor shall (1) private property be (2) taken for (3) public use without (4) just compensation.When deciding the next course of action the property owner should be aware these elements and also should consider the worthiness of the challenge. Currently the Atlanta Falcons, a private sports franchise, are flavor for a new stadium that will be built and operated in a joint supposition with the City of Atlanta through a government appointed agency, The Georgia World Congress refer Authority and just compensation will play heavily in the activities of property acquisition.There are two performes in the way of the proposed new stadium site, one of which wants to improve its standing and position and the other has age and historical significance. Friendship Baptist Church has historical significance in that it was started by slaves more than 150 years ago a nd is the oldest black Baptist church in the city of Atlanta and many important events/institutions began at this church including the fact that Spelman College was founded in the basement of the church and Morehouse College held classes there (Proctor, 2013).At this point, Lloyd Hawk who is the Chair of the Board of Trustees for the church says that they want the significance of the church to continue to be at the forefront and they want some of the significance of the church, such as the Bell Tower, to remain but they are waiting to see what kind of offer they are going to be made. The other church, Mount Vernon Baptist, has conceded that they would sell and have stated that they want to do what is better for both the community and the church.There will be other property owners who choose to hold out severe to get the best deal. This matter will be a good, relevant case strike in eminent domain because it will involve all aspects of the disputed issues including public money, p ublic use, increase economic impact, and private corporate involvement. The bottom line is that in the case of eminent domain there is no clear winner and there may be a clear loser. In some cases it may be a good thing for all parties involved perhaps the property owner has no ties to the property and is ready to get out.Taking payment for the property may be a way that they can walk away cleanly. But, the government, in my eyes will never be the loser because they will always get what they want. The homeowner may not want to surrender the property for any metre of money based on sentiment or any number of other reasons and being pressure out of their gamily home is stressful. Or, the homeowner may feel that the financial (just compensation) falls short of their expectations or they may simply be greedy and want too much.In either scenario the homeowner is clearly the loser if they lose their home under circumstance that they feel are less than ideal if the power of eminent domai n prevails. Bibliography Hill, G. , & Hill, K. (n. d. ). Retrieved from http//legal-dictionary. thefreedictionary. com/public use Minier, D. (2005). Kelo v. city of new london. Retrieved from http//www. casebriefs. com/blog/law/property/property-law-keyed-to-dukeminier/eminent-domain-and-the-problem-of-regulatory-takings/kelo-v-city-of-new-london/ Miriam Webster. N. p. n. p. , n. d.Http//dictionary. findlaw. com/definition/just-compensation. hypertext mark-up language. Web. 04 Apr. 2013. . (n. d. ). Retrieved from http//www. law. cornell. edu/supct/html/historics/USSC_CR_0348_0026_ZS. html private property. (n. d. ). WordNet 3. 0. Retrieved April 16, 2013, from Dictionary. com websitehttp//dictionary. reference. com/browse/private property private property. (n. d. ). Collins English Dictionary Complete & unabridged dictionary 10th Edition. Retrieved April 16, 2013, from Dictionary. com websitehttp//dictionary. reference. com/browse/private propertyProctor, A. (2013, March 22). H istoric atlanta church sits on proposed site of new falcons stadium. Fox 5 News. Retrieved from Historic Atlanta church sits on proposed site of new Falcons stadium SCEG. (n. d. ). Retrieved from http//www. columbia. edu/cu/cssn/expansion/ Smenkowski, B. P. (n. d. ). Retrieved from http//www. britannica. com/EBchecked/topic/206470/Fifth-Amendment/296512/Takings In text (Smenkowski) Smith, K. B. , Greenblatt, A. , & Mariani, M. (2011). Governing states and localities. (3 ed. , p. 439). Washington, D. C. Cq Staff Directories.