Exercise Of Eminent Domain Research Articles

Compensation for lands compulsorily acquired by the state: Issues of non-completion of acquisition, non-payment of compensation and potential unjust enrichment

The exercise of eminent domain by the State to undertake compulsory acquisition of property for public benefit was used by the British colonial administration to secure lands for public infrastructure such as roads, streets, public service institutions and others. The post-independent governments assumed this power and applied it to acquire lands and properties for public purpose or benefit from the 1960s to date. However, compulsory acquisitions have been fraught with problems such as non-completion of laid-down acquisition processes and non-payment of compensation to owners of property immediately before the acquisitions were made, even though the public institutions on whose behalf executive instruments were issued to initiate the acquisitions have occupied the lands or properties. This study focused on why this situation occurs, and whether or not it is just. Analytical legal research methods were used to investigate the issues of the study through critical review of constitutional provisions, enactments, regulations, case law, and legal texts. The findings show that the acquisition processes tend to exclude the owners immediately before the acquisition, and the acquisitions by the State remain valid since they were based on appropriate legislation. However, the rightful owners tend to lose their property by operation of law or due to barriers imposed by limitation statutes. The article concludes that this situation borders on potential unjust enrichment to the State which gains property without payment by operation of the rules created for compulsory acquisition.< p>

Investor-State Dispute Settlement, Profit Expectations, and Externalities

Investor-state dispute settlement allows companies to bring suit against governments for policy changes that reduce the value of their investments. Moreover, international agreements provide, companies have argued, and tribunals have accepted, that estimates of expected profits are legitimate quantifications of the damages suffered by companies from policy changes. At present, decisions turn on a posited distinction between “legitimate” regulation and “illegitimate” regulation; the former represents justifiable grounds for policy changes while the latter is deemed to be arbitrary, capricious, lacking in public purpose, and perhaps even outright illegal. This, however, is a vague and emotive standard that raises politicized questions of “right to regulate” and so forth. This note proposes a more concrete standard. Profit expectations are based on appropriable private returns to an investment and exclude all externalities, positive and negative. The foundation for public regulation of private affairs is the presence of externalities. This construction allows the formulation of rules for quantification of awards, In the case of regulation that restricts private action, the basis is the presence of negative externalities. Where externalities create grounds for civil damages (e.g., damage to property), state intervention is legitimate and awards based on profit expectations should be net of prospective civil damages assessed on a similar basis as in a class action suit. Since both profit expectations and prospective civil damages are speculative but nonetheless quantifiable, the arbitrator’s task is to assess the quality of the empirical analysis of the claims and counter-claims. Where externalities would create grounds for criminal damages (e.g., damage to health or loss of life), state intervention is legitimate and the arbitrator’s task is to assess the risk threshold applied by the state for comparable regulations. Where externalities are potentially unbounded and catastrophic, state intervention is legitimate and the precautionary principle applies since the cost of damages is incalculable. By contrast, where the state intervention is based on the greater good, the principles governing compensation in cases of exercise of eminent domain apply, albeit to a wider definition of property than under domestic law. This note develops these arguments.

The Rise of Anchor Institutions and the Threat to Community Health: Protecting Community Wealth, Building Community Power

Academic institutions are increasingly playing pivotal roles in economic development and community redevelopment in cities around the United States. Many are functioning in the role of anchor institutions and building technology, biotechnology, or research parks to facilitate biomedical research. In the process, universities often partner with local governments, implementing policies that displace entire communities and families, thereby inducing a type of trauma that researcher Mindy Thompson Fullilove has termed “root shock.” We argue that displacement is a threat to public health and explore the ethical implications of university-led displacement on public health research, especially the inclusion of vulnerable populations into health-related research. We further explicate how the legal system has sanctioned the exercise of eminent domain by private entities such as universities and developers.Strategies that communities have employed in order to counter such threats are highlighted and recommended for communities that may be under the threat of university-led displacement. We also offer a critical look at the three dominant assumptions underlying university-sponsored development: that research parks are engines of economic development, that deconcentrating poverty via displacement is effective, and that poverty is simply the lack of economic or financial means. Understanding these fallacies will help communities under the threat of university-sponsored displacement to protect community wealth, build power, and improve health.

Private property rights not to use, earn from or trade land in urban planning and development: A meeting between Coase and Buchanan

This paper discusses the importance of private property rights not to trade a resource, with reference to the economic emphasis on transactional efficiency due to Hayek's friend, Ronald H. Coase (1910–2013). These were stressed by James M. Buchanan (1919–2013), a supporter of Austrian economics, for the planning and development of a market economy that respects human dignity based on freedom. It has been explained that the ideas of Coase and Buchanan are not contradictory, but complementary. The former focused on voluntary contracting and the latter on institutional stability that safeguards the freedom of contract. Three contentious topics in property planning and development, namely trends in the exercise of eminent domain and land resumption in favour of doubtful public use or purpose; a legislative tendency to reduce the period of occupation for adverse possession; and government eviction of squatters from public land, are illuminated by such rights not to trade.

Solving the Foreclosure Crisis Through the Exercise of Eminent Domain

A brief look at the current breadth of the foreclosure crisis, why there is a need for a legal solution, and what the legal solution is.

Reviving Necessity in Eminent Domain

The necessity doctrine states that a condemnor may only take property via eminent domain that is necessary for furthering a proposed public use. With the advent of the Kelo v. City of New London decision and its deferential treatment of public use, necessity remains one of the few existing checks on government discretion in eminent domain. This article proposes a modest revival of the dormant necessity doctrine that preserves government discretion while curbing the reckless exercise of eminent domain.

Exclusionary Eminent Domain

This article explores the phenomenon of “exclusionary eminent domain”—the exercise of eminent domain that has the effect of excluding low-income households from an otherwise predominantly or entirely middle-class or wealthy neighborhood or locality—and assesses the case for a new state constitutional law doctrine limiting exclusionary eminent domain. An exclusionary eminent domain doctrine would be rooted in the public use clauses of state constitutions, and would result in the application of heightened review to the condemnations of low-income housing in a locality or neighborhood that otherwise has less than its fair share of such housing. An exclusionary eminent domain doctrine would promote full cost internalization by condemning localities, and hence deter excessive condemnations of low-income households and tend to reduce social costs from concentrated poverty.

Exclusionary Eminent Domain

This Article explores the phenomenon of eminent - the exercise of eminent domain that has the effect of excluding low-income households from an otherwise predominantly or entirely middle-class or wealthy neighborhood or locality, whether or not exclusion itself was the purpose of the condemnation. All condemnations exclude the condemned owner (and his or her tenants, if any) from the condemned property. Exercises of what I am calling eminent are doubly exclusive because the displaced residents are unable to afford new housing in the same neighborhood or locality as their now-condemned, former homes. In exclusionary eminent domain, low-incomes households are excluded not only from their homes but also from their home neighborhood or locality.Exclusionary eminent domain, as I am using the term, seems to occur in two distinct contexts. In the suburban context, a structure or structures occupied by low-income households are condemned by a predominantly non-low-income locality in the interest of attracting new development that will house or otherwise be geared to middle-class or wealthy people. The threatened condemnations of mobile home parks in suburban New Jersey towns such as Lodi are examples of this type of exclusionary eminent domain. In the urban gentrification mode of exclusionary eminent domain, a large city with a mix of wealthy and poor areas condemns low-income housing in a gentrifying or largely gentrified area, with the result that the displaced low-income residents must move to poorer areas of the city or out of the city. The use of threats of eminent domain to facilitate the massive Atlantic Yards development in north central Brooklyn - a development that will feature seventeen luxury towers to be constructed by Frank Gehry - illustrates this model of exclusionary eminent domain. This Article assesses the case for a new state constitutional law doctrine limiting exclusionary eminent domain, and argues that, on balance, the advantages of such a doctrine may exceed the disadvantages. The particular form of exclusionary eminent domain doctrine I am positing would incorporate two of the features of the most analogous existing doctrine, the state constitutional law doctrine regarding exclusionary zoning. Those features are, first, judicial evaluation of a locality's actions in terms of the metropolitan regional needs for low-income housing and each locality's fair share obligation with respect to those needs, and, second, the creation of a rebuttable presumption of illegality when the locality takes an action that will bring its stock of affordable housing below or further below its fair share obligation. An exclusionary eminent domain doctrine would not absolutely bar condemnation of low-income housing in a locality or neighborhood that otherwise has less than its fair share of such housing, but rather would result in the application of heightened review to such condemnations. The condemning authority would have to provide a more compelling, more-tailored justification for condemnation than rational basis review would require.An exclusionary eminent domain doctrine would raise the cost to local officials of condemning low-income housing located in middle-class or wealthy neighborhoods or localities, and thereby would make it more likely that those officials would configure new development so as to leave such housing in place. The doctrine also would provide a strong incentive for a locality that wanted to proceed with the condemnation of low-income housing to create substitute low-income housing in the same neighborhood as the development site, as by doing so they would negate the claim that condemnations would drop the locality or neighborhood below its pre-condemnation fair share of low-income housing. In addition, the doctrine would have the effect of increasing the bargaining power of owners of low-income housing owners who want to sell, so that they would receive larger payments than they would have if there were no exclusionary eminent domain doctrine.

Living in the Past: The Kelo Court and Public-Private Economic Redevelopment

This Article analyzes the Supreme Court’s most recent foray into redevelopment - the controversial case of Kelo v. City of New London. Over angry dissents by the Court’s conservatives, an unenthusiastic Justice Stevens validated New London’s condemnation of single-family homes for a mixed-use commercial development. The case ignited afirestorm of opposition. Property rights advocates, moving beyond the dissenters’ arguments, introduced legislation in most states and in Congress which would terminate the use of condemnation to assist economic redevelopment for any purpose. This Article critiques both the majority opinion and dissents in light of the modern practice of public private economic redevelopment. It argues that the majority opinion fails to elucidate the economic and social activity involved, and that the facts in Kelo are unrepresentative of modern redevelopment - a productive and necessary cure for land use market failure in center cities. This public-private collaboration catalyzes the revitalization of downtowns, facilitates infill development, and produces much of the nation’s affordable housing. Where such redevelopment requires the use of eminent domain, its exercise is essential against economically motivated owners who refuse to participate in the redevelopment and hold out for untenable prices. The exercise of eminent domain rarely involves condemnation of residential uses, and when so directed, now requires relocation and produces compensation that usually exceeds fair market value. This Article proposes that modern public-private economic redevelopment commingles public and private uses, public and private ownership, and public and private gain in ways that renders inapposite and un-administrable both the majority’s view of land use and the dissenters’ proposed litmus tests for acceptable use of eminent domain. Finally, this Article contends that Justice O’Connor’s dissent clashes inexplicably with principles of deference she herself articulated in the Court’s last pronouncement on redevelopment, that the dissenters’ policy complaints are decades out-of-date, and that the America the Justices would reinstate lies in the irretrievable past.

Reframing the Debate over Eminent Domain Reform

As a purely theoretical matter, we can predict that a flat ban on all exercises of eminent domain will result in some less development in urban areas (poor or not poor) and some more development in exurban or rural areas. We can also predict that a ban on only economic development condemnations (which allows so-called blight or blight removal condemnations to continue as before) will result in some more development in poor urban areas (but not necessarily in urban areas as a whole) and in exurban or rural ones, and less development in suburban areas (at least non-poor suburbs). We can say almost nothing about how much less or how much more. Moreover, even these minimal predictions must be qualified because restrictions on eminent domain may lead localities in fragmented land markets to rely more heavily on alternative means to reduce the costs of land assembly for developers, such as cash and infrastructure subsidies or zoning exceptions, particularly in markets where the status quo ante was imperfect competition among the localities for new development. The qualitative claims about the nature of the development that will be encouraged or discouraged as a result of eminent domain reforms lack both theoretical and empirical support. Stated simply, there is no defensible way to categorize as or bad, economically viable or non-viable, efficient or inefficient, socially beneficial or socially harmful, the development in urban areas that will be lost as a result of a flat ban on eminent domain or (in poor urban areas at least) that will be gained as a result of a ban on economic development condemnations coupled with continued allowance of blight condemnations. One reason this is so is that the two legal tests for the kinds of that are sufficient for the exercise of eminent domain - the economic development as public use test and blight removal as public use test - do not necessarily select for good new development according to any intelligible criteria of goodness. In sum, we are left with a rather unsatisfying situation: a lack of any assurance as to whether there will be any net benefits, in terms of more good development and less development, as a result of either of the two eminent domain reform alternatives currently on the political agenda, namely, a flat ban (the Florida approach) or a ban on only economic development condemnations coupled with continued allowance of blight condemnations (the approach in most reforming states). Given this unsatisfying situation, and assuming we do care about poorer urban areas, we need to ask, we should ask: is there a different kind of eminent domain reform for which we would have more, at least some more, assurance that it will produce more development and less bad development in those areas? The debate over eminent domain reform needs to be re-framed.

All That's Gold May Not Glitter

I. INTRODUCTION I own some common stock in a mining company called Canyon Resources, which owns (inter alia) a lease on a mine in Montana which contains 9.9 million ounces of gold and 30 million ounces of silver in mineralized rock. The mine(1) development project was in the process of obtaining the required permits in November 1998 when the voters of the State of Montana passed initiative which prohibited use of cyanide in a new or expanded mine operation. The practical effect of this prohibition is to make it economically unfeasible to extract the gold and silver from this mine. II. THE CYANIDE MINING PROCESS One of the mining methods used in the United States involves taking low-grade metal ore, crush[ing it,] and plac[ing it] in a pile on a leach pad.(2) The metallic minerals are then extracted sprinkling a leaching agent such as cyanide on top of the heap pile. As the leaching agent is drawn through the heap pile, it binds with the metallic ore and is `recovered through a system of collection channels beneath the heap'.(3) When this is recovered, the metallic mineral is extracted from the solution and the leaching agent is recycled for re-use.(4) If there is any loss or discharge of the leaching agent from the system [,it] will not only cause environmental damage but [will] also [cause] economic loss for the mining operation.(5) This process has been widely used in mines, including several in Montana,(6) for one hundred years or more. During the ten years prior to the 1998 initiative, Canyon Resources invested $70 million in preparing to operate the mine, with the expectation of extracting gold and silver worth up to $600 million.(7) III. INITIATIVE 137 On November 3, 1998, the anti-cyanide mining initiative (I-137) was passed by a 52-48% vote of the Montana electorate.(8) I-137 bars the use of cyanide leaching technology at new open-pit mines. Existing cyanide operations, including expansions, are allowed to continue.(9) So far as I can determine, this is the first statewide ban on cyanide process mining in the United States. Not surprisingly, at least two suits have been filed by other interested parties contesting the validity of I-137, and Canyon Resources is also considering litigation, though it first pursued possible avenues in the political process.(10) The mining community feels strongly that the effect of I-137 constitutes a taking of private for public use without just compensation,(11) in violation of the Fifth and Fourteenth Amendments.(12) As the Supreme Court stated in the early case of Pennsylvania Coal Company v. Mahon,(13) while may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.(14) Some values incident to property are subject to an implied limitation and must yield to the police power [, but that] implied limitation must have its limits....(15) When the diminution of values in reaches a certain magnitude, in most if not all cases there must be exercise of eminent domain and compensation....(16) IV. THE GRANDFATHER(17) CLAUSE IN I-137 I-137 provides that mine using heap leaching or vat leaching with cyanide ore processing reagents which was operating on November 3, 1998 could continue operating under its existing operating permit, presumably until the mine was exhausted. For Canyon Resources this would have been expected 12-14 years. Any mines already operating on that crucial date might continue their operations for much longer. Opponents of I-137 argued that cyanide had been used safely in mining in Montana and elsewhere for over one hundred years, with no harm to people, and little if evidence of injury to flora or fauna. Strong support for this position is the fact that the proponents of I-137 included the grandfather clause. If there was serious danger of harm to people, animals, or the environment, surely the correct action would be to stop the harmful activity immediately. …

Is the St. Louis Redevelopment Program Fiscally Beneficial?

ABSTRACT: St. Louis is one of many U.S. cities suffering from urban decay and fiscal crisis. To resolve these problems, the city has adopted a redevelopment program under Missouri State Statute 353. This Chapter 353 program grants private developers 25 years of tax abatement for making property improvements and permits them to accumulate property through the exercise of eminent domain. The program includes the city's entire central business district and has been extended to cover residential areas. This article discusses the research study on which this Chapter 353 program was based, points out a number of serious problems, and concludes that the program may, in fact, further reduce the city's fiscal integrity.

Practical Problems with Implementation of Muncipal Noise Control Regulations and Ordinances

Until states and municipalities assumed some responsibility for the abatement of noise, courts provided remedies on a case-by-case basis by awarding damages to the private property owner or enjoining the continuance of the noise nuisance. Close to the private nuisance are. the theories of trespass, assault, and “taking” (the exercise of eminent domain by inverse condemnation or easement). Springing from this basic common law action is the remedy of public nuisance municipal ordinances, which take the additional step of striking at the source of noise itself. In this paper we discuss the effectiveness of municipal noise ordinances based on the private nuisance concept, and regulations based on zoning, tax incentives, and outright prohibition. Also related are our opinions of notably favorable and unfavorable enforcement procedures in the San Francisco, Chicago, New York City, Palo Alto, and the League of California Model Municipal Noise Ordinances.

Water Rights and Regulation in the Eastern Statesa

AbstractThere are numerous ramifications to consider in discussing water rights and laws. In this discussion meaningful impressions concerning water rights and related laws in the 31 States lying east of Texas and the Dakotas are presented. Research is still in progress and a number of the statements are necessarily tentative.cAlthough legislation of various types has been enacted, court‐made rules still provide the primary basis for the water rights laws of most eastern States. This means rules developed by the reported decisions of the State appellate courts. In Louisiana, however, unlike the common‐law States, the Civil Code provides the primary basis for its laws (see Borton, Mark E. and Ellis, Harold H., “Some Legal Aspects of Water Use in Louisiana,” La. Agr. Expt. Sta. Bul. 537, June, 1960). Bear in mind that these general rules often vary from State to State and that they may be modified by voluntary contractual arrangements, the exercise of eminent domain, prescriptive rights, legislation, and various other complicating factors. Furthermore, the laws of most States are unsettled regarding a number of questions, and several court decisions are of elderly vintage and hence might be modified under current conditions.Water supplies, natural or developed, all may be more or less interrelated. But rights to use them may vary according to their particular designation as classified by the courts for various purposes. Some common classifications of natural water supplies include natural watercourses, diffused surface water, percolating ground water, and underground streams.

Corporations: Exercise of Eminent Domain by Domestic Corporation for Benefit of Foreign Corporation

Corporations: Exercise of Eminent Domain by Domestic Corporation for Benefit of Foreign Corporation

Railroads. The Fact That Only an Easement or Terminable Fee May Be Acquired by the Exercise of Eminent Domain Does Not Preclude a Railroad Company from Purchasing a Right of Way

Railroads. The Fact That Only an Easement or Terminable Fee May Be Acquired by the Exercise of Eminent Domain Does Not Preclude a Railroad Company from Purchasing a Right of Way