Land-Use Control

EMINENT DOMAIN is the right or power of a unit of government or a designated private individual to take private property for public use, following the payment of a fair amount of money to the owner of the property. The FIFTH AMENDMENT to the U.S. Constitution provides, "[N]or shall private property be taken for public use, without just compensation." This statement is commonly referred to as the Takings Clause. The theory behind eminent domain is that the local government can exercise such power to promote the general welfare in areas of public concern, such as health, safety, or morals.

Eminent domain may be exercised by numerous local government bodies, including drainage, levee, or flood control agencies; highway or road authorities; and housing authorities. For example, if a city wishes to build a new bridge, and the land it needs is occupied by 60 houses, it may use its eminent domain power to take the 60 houses, remove the buildings, and build the bridge. The government must make just compensation to the affected property owners, who are entitled to the fair market value of the property.

The power of eminent domain is exercised through condemnation proceedings. These proceedings establish the right to take the property by the government or designated private individual (usually PUBLIC UTILITIES) and the amount of compensation to be paid for the property.

The U.S. Supreme Court has examined the relation between land-use regulations and the Takings Clause. In Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992), the Court held that a total deprivation of economic use amounts to a taking for which damages may be awarded. Lucas involved a developer who had purchased coastal lots to construct two single-family residences. A South Carolina law, which sought to protect the eroding shoreline, prohibited him from building anything except wooden walkways and a wooden deck. The Supreme Court agreed that he was entitled to compensation because this was a regulatory taking.

In Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994), the Court limited government power to take private property for the public good. The Court ruled that a city cannot force a store owner to make part of the owner's land a public bike path in exchange for a permit to build a larger store. The decision makes it more difficult for municipalities to require that land developers give up for public purposes part of their property, including sidewalks, access roads, and parks. If the government needs the land, it must compensate the owner.