Eminent Domain Is One of Term Paper

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Total Length: 2083 words ( 7 double-spaced pages)

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Bell and Parchomovsky 871)

This having been said the demand should rest on the public entity to not only prove the public purpose of the eminent domain ruling but also to fairly compensate the owner(s) with regard not only to market value but based on other interests as well.

A takings law permits undercompensation whenever the reserve value of the property owner exceeds market price. Second, many important compensation doctrines require courts specifically to ignore different kinds of value lost to owners of taken property, such as goodwill. (5)the problem of inadequate compensation has not gone unnoticed by courts. (6) Judge Posner wrote in Coniston Corp. v. Village of Hoffman Estates:

Compensation in the constitutional sense is... not full compensation, for market value is not the value that every owner of property attaches to his property but merely the value that the marginal owner attaches to his property. Many owners are "intramarginal," meaning that because of relocation costs, sentimental attachments, or the special suitability of the property for their particular (perhaps idiosyncratic) needs, they value their property at more than its market value.... (7)

Undercompensation is both unfair and inefficient. It is unfair because it deprives property owners of part of the value of the property taken.

Bell and Parchomovsky 871)

Lastly Bell and Parchomovsky point out that the intention of the constitutional law associated with eminent domain is to restrict the rights of government and allow the individual to retain such rights as are lawful.

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For this reason the idea that undervaluation is the standard of due compensation is remarkable.

As Justice Black famously stated in Armstrong v. United States, "The Fifth Amendment's [just compensation] guarantee... was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."

Bell, and Parchomovsky 871)

The reality of this statement is that municipalities, states and even the federal government need to pay much more close attention to due compensation, and be willing and able to pay property value, that includes both tangible and some intangible variances, on value, where they are applicable, and the public should bear this burden as a result of the good that is proposed to be done with the land. If the public is given this option and understands that they will have to pay more dearly for the demanded use of eminent domain, they are more likely to catch the bad deals that often befall individual owners and restore the deterrent aspect of the constitutional takings laws. In so doing the public may become more conscious of the need to make more informed decisions about the rights of the individual, regardless of the desire of the political entity attempting to take land at rates that are not fair to land owners, the people the constitution was meant to protect.

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