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The Need for Eminent Domain
Letters to the Editor
Wall Street Journal
December 22, 1998
Your recent article attacking local governments' use
of their power of eminent domain ("Condemnation Is
Used to Hand One Business Property of Another,"
front page, Dec. 2.) failed to give your readers any
sense of why the Framers of the Constitution carefully
preserved the power and why even the most conservative
members of the Supreme Court have been reluctant to
unduly tie government's hand in exercising eminent
domain.
Local governments rely heavily on eminent domain to
achieve their land use planning objectives. It allows
communities to acquire land necessary for schools, roads,
parks and urban renewal projects. It also allows
communities to preserve historic sites and purchase
conservation easements to protect open space, habitat,
scenic views and farmland. Even more importantly, eminent
domain protects taxpayers from being held hostage by what
economists call "holdouts." Without it,
property owners could extort windfall profits from the
taxpayers when they happen to hold key property necessary
to complete a proposed road, park or project.
Alternatively, they could stop community initiatives by
refusing to sell.
Communities seeking jobs and economic growth also
encounter holdout problems. Corporations attempting to
bring jobs into a community frequently find it impossible
to assemble the land necessary for a proposed facility.
When such holdouts threaten desperately needed jobs, a
community may decide to help the corporation through use
of eminent domain. It is not at all a "stretch"
of community authority to take property in order to
enhance economic well-being. Indeed, this is a
quintessential example of community action on behalf of
the public interest. The const itutional guarantee of
"just compensation" ensures that the holdouts
are compensated for their property loss.
Advocates of extreme theories of property rights have
long clamored for the government to use eminent domain
and pay compensation whenever it regu lates permissible
land uses. It is ironic that these same advocates,
(Gideon Kanner, who is quoted in your article, is a
notable example) are now attacking communities for using
this critical power.
Judges should not use anachronistic notions of
absolute property rights to thwart critical land use
planning, economic growth, jobs and the communities' best
interests.
DOUGLAS KENDALL
Executive Director
TIMOTHY DOWLING
Chief Counsel
Community Rights
Counsel
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