Terry Stokka has lived in Black Forest for 29 years. He is president of the Friends of Black Forest, chairman of the Black Forest Land Use Committee and chairman of the Black Forest Water & Wells Committee.
Eminent Domain: a dirty word?
By Terry Stokka
When we hear the words “eminent domain,” it conjures up thoughts of the government taking grandma’s home by force and turning the property into a freeway. While that has happened, the concept of eminent domain does have useful and necessary purposes. Unfortunately, there are abuses.
Eminent domain predates the U.S. Constitution but was enshrined in the Fifth Amendment of the Bill of Rights as the “takings clause,“ which stated that private property taken for public use must provide “just compensation.” This clause recognizes that the government has the right to take private property for public use, but it also mandates that the owner receive just and fair compensation. Just compensation is usually the appraised value of the property, but the cost and emotional trauma of moving to another home is rarely an even trade. In my view, that statement should have said, “compensation double the appraised value” since the owner did not want to surrender the property. Eminent domain must benefit the general public. For example, if a new freeway must be routed across grandma’s house, a huge public project such as that cannot be stalled just because one person refuses to sell their property.
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In my own neighborhood, a large development in the early 2000s needed access to the main road. The desired access road meant taking half the right-of-way from private residents and half from a park. An obscure law prevented taking land from a park to make a road so the right-of-way (60 feet of property) was taken from the private residents by eminent domain. The residents did not feel that the appraised value was “just compensation.” They just wanted to keep their property.
One of the more notorious eminent domain tragedies occurred in 2005 in New London, Connecticut. A large manufacturing company wanted a parcel of land that contained a significant number of homes in a well-maintained and established neighborhood. After a hard-fought battle, the city convinced the U.S. Supreme Court to declare that “public use” could mean the manufacturing business would produce greater economic benefits (aka taxes) than housing.
The residents were paid the appraised value and all of them moved. The property was scraped clean to bare dirt; then the manufacturing company changed their mind and abandoned the project. That property remains bare and useless to this day.
Another distortion of this concept is called a “prescriptive easement.” In a previous article, I discussed easements as permission to use my property, normally along the border, for utilities and roads. Some conniving, powerful politician was able to put “prescriptive easement” into law and its effects defy logic. Let’s say that my neighbor has a vacant piece of his property in the back of his lot, and I have found that cutting across that vacant parcel is the shortest way to my job or grocery store. After a number of years, sometimes five to 20 years, if my neighbor doesn’t object to the path I have made across his lot, I can go to a judge and say that my neighbor obviously doesn’t care about this piece of property or he would have said something to me. Therefore, I have a more valid use than he does and the judge can declare that the vacant piece of his lot is now mine. How’s that for logic? People have actually had properties taken from them not realizing that the harmless path across their property would lead to losing the entire property.
Public utilities are able to use eminent domain for pipelines and power lines when easements won’t work. A recent 17-mile pipeline from Black Forest to southeast Colorado Springs was completed by paying people for easements across their property without having to use eminent domain.
It is understandable that a freeway or major gas line can’t zig-zag back and forth just to avoid a single home, so eminent domain can be logic and useful. However, it is incumbent on our governing officials to be honest and fair to make sure eminent domain is used as the Constitution dictated and not distorted for the benefit of a private entity. Let’s hold their feet to the fire on that issue.
