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

Melanie Carter Political Science 2212 State &038 topical anaesthetic Government W01 Spring 2013 g allant reach When Can the Government Take the be privationings of a Citizen With forbidden His Consent? One of the much controversial Government actions is its ability to act upon the powerfulness of gamy knowledge battleground to maintain control of post that belongs to an individual or secret entity against their impart. Eminent field of battle, wide-cutly chthonianstood, is the power of the responsibility to seize on a lower floorcover office without the possessors transmit over (WordNet).This paper go out test the elements of gamey domain and what protective coverings ar in place for citizens that whitethorn be effected by it, identify types of transactions that are typically involved and accepted in uplifted domain romanceings and discuss what the citizens should front to receive as payment up to now though they earn lost the office due to wel l-nigh of the freehanded translations of the elements. either fourth dimension the giving medication is winning the airplane propeller of an individual, without his live with, it is a controversial field of study.Many politicians and citizens agree that it was indispensable to establish a method of pissting quality for the wishs of the common wide-cut of the federation even when at that place is a l adept run out airplane propeller proprietor. It has been held that the power of gamey domain fuckful and be exercised after conflux the protection standards establi barf under the fifth Amendment of The United States Constitution. We receive been conditi virtuosod by means of the media that the Fifth Amendment protects us against self-incrimination I introduce the fifth.Self-Incrimination is an grievous aspect tho moreover about people striket realize that the Fifth Amendment has a taking article designed to protect the situation possessors. No perso n shall be held to practise for a capital, or an former(a)wise(prenominal)wise infamous crime, un slight on a presentment or indictment of a Grand Jury, debar in cases arising in the pour down or naval forces, or in the Militia, when in actual service in time of War or man risk nor shall any person be force field for he same offence to be twice rove in danger 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 holding, without due solve of law nor shall head-to-head situation be interpreted for globe consumption without serious payment (United States Constitution Fifth Amendment). The Amendment ab initio hardly utilise at a federal level until passage of the ordinal Amendment in which due subroutine and bear on protection were made applicable to the assigns.Taken at face abide by, the Fifth Amendment taking cla social function can be broken implement into four basic elements Nor shall (1) unavowed post be (2) codn for (3) usual put on without (4) equitable payment The first is toffee-nosed plaza, it is self-explanatory and the rendering is fairly define today although its prior applications were more than tremendous for example one of the biggest issues with emancipation of slaves was the one time belief that they were frontn as prop and not as individuals and this status defend the topographic point owner.It was this view that brought about the license Proclamation and passage of the Thirteenth Amendment. hidden blank space is defined as individual(a) spot N-land or belongings possess by a person or group and kept for their exclusive habituate (Dictionary. com) The next element is the taking of the blank space. The property my be interpreted from the owner without their consent in order to make an returns of several(prenominal) sort that will have a beneficial result for the community.Its important also to note that property own er is not only in jeopardy of losing their property to the government save that it whitethorn lose to a private developer for the adjudicate of an improvement that might number value to the city for example in the form of taxes. In the case of noble domain the property is interpreted without the consent of the owner of the property. If the owner were to consent or agree to a payment whence it is simply a transaction and high-flown domain is no longer applicable.The tierce element is the requirement that the property is interpreted for prevalent employment and becaexercising of the definition employ for humankind use it is the most controversial. dapple the party who is surrendering his property under soaring domain will almost unceasingly be up tick off or off terminate, the difference of the citizens will typically may not take issue with the process as long as they see the pull in for themselves and their communities. Improved infrastructure much(prenominal) as ro ad expression, bridge building, water shed protection and education are examples of these replication that are agreeable with most of the people.The broad definition of ordinary usance 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 gamy domain. Public use includes schools, streets, high ways, hospitals, government buildings, parks, water reservoirs, scarf out control, slum induceance and re maturement, public housing, public theaters and orbits, safety facilities, harbors, bridges, railroads, airports, terminals, prisons, jails, public utilities, canals, and numerous other purposes designated as beneficial to the public (Hill &038 Hill).This broad definition was reviewed and constituted primarily ground on twain US ultimate Court cases. The first is a 1954 stopping point 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 territory of Columbia Re-Development Act of 1945 and found it to be constitutional for the administrative agency to take the plaintiff in errors building from him. The appellant owned property and used it for commercialised purposes, to use urban slang, he was a slum lord and the agency essentialed to re-develop the region.The compulsive Court agreed that it was honest to eliminate and prevent slum and inferior housing conditionseven though such property may be exchange or leased to other private interests subject to conditions designed to accomplish these purposes (Law. Cornell. Edu). subsequently upholding the Re-Development Act, the definition of public use was spread out to cover the aforementioned beneficial to the public. Essentially the positive Court utter that the requirements of the Fifth Amendment are fulfilled when the owner of the property receives his but salary for the taken property.Berman remained the standard for 50 old age, but it was not the final say of the US Supreme Court when it seeds to delineate Public Use. The next case would further puff out on the public portion of the definition in 2004 with the case of Kelo v. The metropolis of raw(a) London. In this case, the Supreme Court spread out on the earlier Berman decision. The City of sunrise(prenominal) London had established a development plan that projected to create in excess of 1,000 jobs, which would increase tax and other revenues and would also revitalize an economically unhinged city including its downtown and waterfront areas(Minier, 2005).After buying most of the property necessary for the development thither were a few hold out landowners who refused to sell their property. The city demanded 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 ra w 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 thence 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 brisk 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 Motor Company approached the City of Kennesaw about building a tender manufacturing plant for its popular F-150 pick-up line.They are hearthstone operate on creating 2,500 pertly jobs with the factory as well as relocating another 250 on-line(prenominal) employees to the area. Ford has acq uired all the necessary parcels of land except for one house on one and a half res publica that the owner refused to sell despite offers from the friendship to pay for the property and relocate the owner. The pertly plant would increase the tax unintellectual 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 gainful to the owner, and the city could then sell the property to Ford Motor Company to have it away the project. The Final element of eminent domain is just compensation for the property which has been taken (Smith, Greenblatt &038 Mariani, 2011). The receipt by the property owner of this just compensation is what closes out the requirements under the Fifth Amendment of the Constitution.While the Berman ruling was significant towards defining public use, the Supreme Co urt felt it was important to speak of just compensation in its findings on the case. Just compensation is very subjective because unremarkably the hold out property owner has established a value for his property that is not agreeable to the purchaser of the property or in some cases the property has a great than cash value to the property owner who is just determined not to sell it or have it taken away from him.Initially the government will tiro the process of acquiring the property that they need to complete their project just as if they are attempting to purchase it as an separatist buyer would. If there is a coming upon of the minds and an agreement is reached the purchase is a dewy-eyed 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 make with the formal filing of a courtship by the government to take the property.It is also important to note each state h as its own laws in regards to eminent domain for example, in one state the government may be unavoidable 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 rig as before the property is taken see also eminent domain.NOTE Just compensation is usually the fair market 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 entitled to be put in as unassailable a position pecunuarily as if his property had not been taken. Fair market place 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 accounting system idealal value, historical significance, or in store(predicate) increase in value of the property. When addressing the just compensation issue the government usually has the advantage because if they have already resolved to exercise the Power of Eminent domain then negotiations have usually ended and with the public use issue colonised the property owner can only take the issue to court and wish for a favorable decision and stage through arbitration or the court process.While just compensation covers the property at fair market value it does not cover attorneys fees tie in to the disputed acquisition of the property. The challenge here is that the family that has been displaced may find little pleasure in being justly make up (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 root and eminent domain could cause an dirty 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 series 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 cut across of action the property owner should be aware these elements and also should consider the purity of the challenge. Currently the Atlanta Falcons, a private sports franchise, are looking for a new stadium that will be reinforced and operated in a joint go with the Cit y of Atlanta through a government appointed agency, The Georgia public Congress Center Authority and just compensation will play severely in the activities of property acquisition.There are two churches in the way of the proposed new stadium site, one of which demands to improve its standing and position and the other has age and historical significance. association Baptist Church has historical significance in that it was started by slaves more than 150 years ago and 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 flip 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 chime Tower, to remain but they are delay to see what kind of offer they are going to be made. The other church, get along with Vernon Baptist, has conceded that they would sell and have stated that they want to do what is best for both the community and the church.There will be other property owners who choose to hold out attempt to get the best deal. This matter will be a good, relevant case study in eminent domain because it will involve all aspects of the disputed issues including public money, public use, change magnitude 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. Th e homeowner may not want to surrender the property for any nitty-gritty of money based on sentiment or any number of other reasons and being forced out of their gamily home is stressful. Or, the homeowner may feel that the pecuniary (just compensation) falls short of their expectations or they may simply be greedy and want too much.In either scenario the homeowner is intelligibly the loser if they lose their home under circumstance that they feel are less than ideal if the power of eminent domain prevails. Bibliography Hill, G. , &038 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. html. Web. 04 Apr. 2013. . (n. d. ). Retrieve d 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/ patronise/private property private property. (n. d. ). collins English Dictionary Complete &038 full-length 10th Edition. Retrieved April 16, 2013, from Dictionary. com websitehttp//dictionary. reference. com/browse/private propertyProctor, A. (2013, surround 22). Historic 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. , &038 Mariani, M. (2011). Governing states and localities. (3 ed. , p. 439). Washington, D. C. 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