Power Of Eminent Domain Research Articles

Solving the Contentious Issues of Private Conservation Easements: Promoting Flexibility for the Future and Engaging the Public Land Use Process

Over the past thirty years, statutes have reversed the common law and authorized private conservation organizations to hold conservation easements gross. These interests allow nonprofits to control the use and development of the burdened property by preventing alterations of the natural and ecological features. Conservation easements can be held by organizations geographically distant from the restricted land. Conservation easements bring great benefits as they support conservation, represent private initiative, yield efficiency benefits, and exemplify freedom of choice of property owners. There are costs, however: significant federal and state tax subsidies, the lack of coordinated planning and public process, class issues, stewardship failures by nonprofits, and lack of flexibility by easement holders to meet emerging needs of the community (such as for economic development or affordable housing). There is a risk to effective policy making and democratic principles when local, public land use decisions are delegated to non-representative, non-accountable private organizations. The benefits of private conservation easements are significant, and they should be continued but with changes. The paper suggests five principles and related specific reforms that should be enacted: restoring market mechanisms in the creation of conservation easements; enhancing governance and operations of easement holders; protecting the expectations of future generation owners; achieving flexibility through expanded termination and modification doctrines; and preserving the public's power of eminent domain.

Project-induced displacement and resettlement: from impoverishment risks to an opportunity for development?

While the World Bank safeguard policies and International Finance Corporation Performance Standards specify the requirements to be observed when project-induced displacement and resettlement occurs, these international standards are not always followed. Governments often invoke the power of eminent domain and implement expropriation procedures instead of building support for a public or private project by negotiating with project-affected peoples. Evaluations of projects reveal that people are usually made worse off by being resettled. This paper provides a general introduction to the topic of project-induced displacement and resettlement, raising the key issues facing resettlement practice: under what conditions should projects and associated resettlements proceed; what constitutes appropriate compensation; can livelihoods be restored or improved; what is the role of benefit sharing and shared value; and how resettlement practice can be improved. Although there is ongoing improvement in the discourse and practice of project-induced resettlement, being resettled is still likely to be an impoverishment risk and have an emotional toll. Hopefully, however, under the right conditions, resettlement has the potential to be an opportunity for development.

Eminent Domain: The Perpetual Rights of the Indigenous People of Kenya to Land Ownership

The power of eminent domain, a facet of the powers vested in the Government of Kenya, is ideally a tool for conservation of the environment and the advancement of the public good. Unfortunately, this power has been abused over the years, and become a gateway for unscrupulous regimes to appropriate land. Consequently, the core right of indigenous people—the right to ownership of property, specifically land—has been violated and usurped time and time again to the end of eminent domain. Due to the unique nature of indigenous people and their identity, the power of eminent domain should be suspended from the prerogative of the Government for the sake of their protection and continuity.

Consolidation of Utility Rights-of-Way

The relative stability of land acquisition enjoyed by purveyors of natural gas in Pennsylvania may soon be compelled to find alternative siting options in light of growing opposition. It is widely settled that the business of transporting and selling natural gas in domestic or foreign markets for ultimate distribution to the public is in the public’s interest and therefore confers the right of eminent domain. With fourteen projects currently pending before the Federal Energy Regulatory Commission (“FERC”), located to some extent in the Commonwealth, the right to exercise the power of eminent domain for the siting necessities of natural gas pipelines is basic to the success of a project.

A Comparative Legal Study of Authority and Limit of Power of Eminent Domain under the US Federal Court

A Comparative Legal Study of Authority and Limit of Power of Eminent Domain under the US Federal Court

A Comparative Legal Study of Authority and Limit of Power of Eminent Domain under the US Federal Court

A Comparative Legal Study of Authority and Limit of Power of Eminent Domain under the US Federal Court

Invited Takings: Supermajority, Assembly Surplus, and Local Public Financing

Fear of the abusive exercise of eminent domain power and of potentially high costs resulting from serious holdout could cause slowdown and even suspension of land assembly for urban redevelopment, which is particularly devastating for the developing world. Invited takings, as recently emerged in many cities in China, delivered successes in overcoming holdout without a heavy dose of eminent domain. Property owners are empowered to decide whether to sell their property to the government with a supermajority vote at two distinct stages in the project, while subjecting the dissenting minorities to eminent domain. Invited takings differ from private techniques for land assembly by implementing equal treatment and transparency within the relevant group of property owners. It also deviates from conventional wisdom of eminent domain by allocating a substantial portion of assembly surplus to property owners. Such a strategy was made possible and attractive with certain background institutions as a response to limited local government revenue, such as debt financing by local state-owned entities. Finally, it better aligns costs and benefits of land assembly, shedding light on institutional design for other developing countries. For the first time within and outside of China, this Essay provides a systematic description and analysis of invited takings, based upon information on 23 invited taking projects that occurred in eight provinces and two provincial-level cities in China over the past ten years.

Coastal TDRs: A Solution for Shifting Sands on Folly Beach?

ABSTRACTFolly Beach, South Carolina is in dire straits. Severe coastal erosion and controversial beach renourishment projects have raised serious concerns for the immediate future of the beach and surrounding coastal community. Deciding on a course of action to address these issues has led to conflicts between policymakers, property owners, and members of the public, particularly because traditional ideas are so unpalatable: the use of additional hard erosion control devices is not only environmentally objectionable, but also heavily restricted under South Carolina law; beach-wide renourishment projects provide temporary solutions but are expensive and often fraught with problems; and the taking of at-risk beachfront property under either the state or city's eminent domain power presents both legal and financial hurdles. This article considers whether a system of Transferable Development Rights (TDRs), a market-based mechanism grounded in economic incentives, could be a viable solution for Folly Beach's erosion-related problems. In theory, by incentivizing relocation and inland development, a properly implemented TDR program in Charleston County could protect its public trust beaches in furtherance of South Carolina's stated coastal management policy of retreat from the shoreline.

A Política das Cláusulas Expropriatórias

A long-standing consensus exists that the arbitrary or excessive expropriation of private property by a country hurts its economic growth. Although constitutions can play an important role in protecting private property, remarkably little is known about how they actually restrict the power of eminent domain and whether such restrictions are associated with reduced de facto expropriation risks. The main finding of this essay is that no observable relationship exists between de jure constitutional restrictions on the power of eminent domain and de facto expropriation risks. This finding suggests that the effectiveness of takings clauses might depend on the politics surrounding their adoption.

Resisting devaluation: Foreclosure, eminent domain law, and the geographical political economy of risk

This article examines recent plans for US municipalities to use the state legal power of eminent domain to forcibly acquire “underwater” mortgages (i.e. those with negative equity), and to refinance them on terms more favorable to the homeowners in question, as a way of addressing in a socially progressive way the nation’s ongoing foreclosure crisis. The article makes three main arguments. The first is that insofar as the plan threatens to disrupt prevailing norms of value distribution and risk bearing, it represents a fundamental challenge to the existing political economy of urban financial capitalism in the US and the law’s mediation thereof. The second is that value, risk, and their mediation through law must be understood in the context of geographical unevenness and shifting scales of legal governance. The third is that the geographical political economy associated with the eminent domain plan is about discourses—of risk, of markets, and indeed of law per se—no less than materialities; and that the two are indelibly linked, with discourses having material effects when, through law, they structure value and risk for the manifold actors who operate within the sphere of housing finance.

Eminent Domain and the International Market: An Examination of Whether Midstream Companies Can Justifiably Show Public Use

The energy industry in Pennsylvania has seen rapid expansion over the past several years. Advancements in technology allow natural gas producers to tap previously unreachable shale gas reserves, bringing an unprecedented supply of fossil fuel energy to market. However, this increased supply is bottlenecked by a lack of midstream capacity. Midstream companies, whose business model revolves around the transport of fossil fuels, have launched pipeline projects that will extend across the landscape of Pennsylvania with hopes of alleviating this bottleneck. These projects will transport growing energy resources to a number of destinations. Some of these resources will be destined for regional energy markets, while others will serve as exports to the international market by way of large gas tanker ships.Construction of these pipelines will require midstream companies to obtain hundreds, if not thousands, of rights of way agreements from Pennsylvania landowners. These rights of way will allow for the construction, operation, and maintenance of pipelines across those private properties. However, not all landowners support the expansion and construction of pipelines. Opponents of this new infrastructure will likely refuse to grant midstream companies a right of way across their land. In response, a midstream company may attempt to exercise its power of eminent domain, claiming the right to do so as a utility. The effectiveness of these eminent domain proceedings will likely rest on one question: whether the of eminent domain for the construction of pipelines satisfies the use requirement when the purpose of this pipeline construction is for the transportation of natural gas products to international markets, rather than to the markets within Pennsylvania. More specifically, is public met when natural gas (NG) and natural gas liquids (NGLs) are transported to coastal ports that will serve as export stations?To resolve this question, this paper first examines the expansion of Pennsylvania's energy production and the planned expansion of pipeline infrastructure. Next, it turns to eminent domain. To fully understand the applicability of eminent domain, this paper examines the power held by the party initiating these proceedings and the requirement that a taking by eminent domain confers a public benefit. This paper then examines the issue of whether the construction of a pipeline intended to transport natural gas and natural gas products destined for international markets satisfies the public benefit requirement for eminent domain. Lastly, it concludes whether eminent domain is a valid tool by which to acquire the right to cross private lands with these pipelines.

Debbie Becher: Private property and public power: eminent domain in Philadelphia

Since the 2005 US Supreme Court Case Kelo v. City of New London, the idea of taking property for private development has been heavily debated and criticised in the USA. Becher distinguishes two main school of criticism to the application of the power of eminent domain to implement development planning. The first is the libertarian approach, which basically says that private property is sanctuary and eminent domain shall never be used to transfer property to another private owner. A taking must be justified by a public use, which means that the actual land use must remain in the hands of public authorities. A second approach is what Becher calls the ‘left explanation’, which points to the fact that authorities predominantly use eminent domain powers in the area populated by the poor. Poor people are so the primary ‘victims’ of eminent domain. Eminent domain is the instrument by which people are displaced to accommodate gentrification and neoliberal development projects and the poor are better off if eminent domain powers will be limited. Both approaches are, according to Becher, not very well founded in the opinions Americans actually hold if it comes to the real existing practice of the use of eminent domain. The opinions are mostly based on hypothetical examples and general principles. Using an approach in legal sociology, Becher fills this gap with an extensive case study of the practice of eminent domain in the City of Philadelphia. At the opening chapter, the author indicates that she expects that actual Americans hold more refined ideas than the libertarian and left explanations suggest. Moreover, she indicates that the protection of investment by government is a much more important principle that must underlie the practice of eminent domain. Becher defines investment as ‘the sacrifice of any kind of value in the hope of future benefits’ (p. 18). A pluralist conception of value is used ‘including money, social networks, material goods, wisdom, love, and skill’ (p. 18). Philadelphia is chosen as a case study as it is a city in which there is a large distinction between neighbourhoods. Some of them are devastated or distressed, others are

Where are Tribals in Their Development? A Century of Indian Forest Legislations

Historically, forest resources were being accessed and utilized predominantly by the forest dwelling tribal communities (FDTCs), but during the colonial regime and later by the State’s interventions, accessibility and ownership on forests were being regularized and controlled through forest legislations. Over the century, forest acts and policies have claimed to conserve and provide the equitable and justifiable distribution of forest resources among the human populace. Ironically, the State has been using its eminent domain power to exclude FDTCs from their rights to livelihood and thereby from social equity and justice. In the pre- and post-independence periods, focus moved from the commercialization of forest resources to communities’ livelihood and participation in the forest governance. Laws are inherently centralized both at the planning and implementation levels and, therefore, hardly there is any scope for principles like social equity and justice for the local communities. This article attempts to address the trends in the forest policies and acts through a critical review and also by analyzing empirical studies on its formulation. In doing so, it will explore the major changes in the Indian forest policies and their relationship with the rights and livelihood of FDTCs.

Using Eminent Domain to Write-Down Underwater Mortgages: An Economic Analysis

A handful of economically distressed cities and counties are considering using their power of eminent domain to write down the principal of underwater mortgage loans. In this paper, we review the legal basis and economic impact of such government-forced loan restructuring. We develop a model of negative equity mortgage default both with and without government takings to determine if using eminent domain is socially desirable from a policy perspective. We find a trade-off between the immediate benefits of avoiding current mortgage defaults and longer term increased financing costs. The weighting of this trade-off is impacted by the determination of just compensation.

Planning as Public Use

This short Essay explores the Supreme Court's suggestion in Kelo v. New London that public, participatory planning may be a constitutional safe harbor that separates impermissible private takings from presumptively valid public ones. After briefly reviewing the Court's discussion of the planning that preceded the Kelo litigation, the Essay examines how Kelo's emphasis on planning departs from standard rational basis review of economic policies and asks what such a departure means for future public-use litigants. The Essay then explores three possible practical benefits of a constitutional rule that encourages the government to engage in detailed planning before exercising the power of eminent domain: First, can public, participatory planning help legitimize so-called economic-development takings? Second, was the Court correct to assume that planning will limit pretextual takings, i.e., the taking of private property in the name of economic development but for the true purpose of benefiting a private individual? And third, will careful planning by the government lead to more successful projects?

Reinventing Real Estate

The community land trust (CLT) is a social invention designed to solve several problems in land ownership, from affordability to preservation. This article traces the history of the CLT from concept to implementation, through a network of theorists and activists, and discusses the present extent of CLTs in the United States. It concludes with a case study of the Dudley Street Neighborhood Initiative (DSNI), a community development organization in Boston, that has used the CLT model as part of its holistic strategy to redevelop a neighborhood that has suffered from redlining, arson, and abandonment. DSNI is perhaps the only community organization in the United States to have attained the power of eminent domain to acquire land for housing development.

The Importance of a Promise: Underwater Mortgages and a Municipal Rescue Attempt Through Eminent Domain

Millions of Americans purchased real estate during the housing bubble of the mid 2000s, when prices reflected a constant upward trend, and real estate appeared to be an ideal investment. When the bubble burst, however, the value of real property plummeted, yet homeowners remain obligated to pay their bubble era mortgage amounts. This has created a situation where many Americans must pay creditors significantly more than the current value of the properties for which they borrowed to purchase. When property values plummet in this way foreclosure rates skyrocket and in a cyclical manner, values continue to drop, crime rates rise, and tax bases and consumer markets whither.State and federal governments have struggled, with minimal success, to address the issue of excessive debt created by the housing bubble as it continues to mire the economy in a slow and lurching recovery. Most efforts to eliminate debt overhang have been based on incentivizing lenders to forgive and restructure debt in various ways. Unfortunately these incentives have generally not been sufficient, and programs have foundered. This Article examines an alternative plan to address excessive housing debt through the operation of investor funded use of the governmental power of eminent domain to acquire and restructure debt. This Article argues that this plan has the potential to resolve many of the shortcomings of previous efforts to alleviate debt, but that, as conceived, this plan also has many problems. This Article will identify the primary barriers to the operation of such a plan and thereby indicate how to modify the plan to address those barriers.

Constitutional Right to Property in Changing Times: The Indian Experience

Abstract The constitutional right to property has undergone a significant change since India's independence. In the past few decades, the guarantee of property for both alien and domestic right holders went for considerable dilution to sanction the unrestrained power of eminent domain. The arbitrary expropriation of property was justified in the then social and political context of a nascent state. However, since India embarked on the path of liberalization with the policy of promoting international trade and foreign investments, there appeared a progressive and selective modification if its legal regime on property rights to favour alien property and corporate interests. Part of the policy shift involved guarantee and strengthening of the legal environment for protection of foreign property and investment. India's international commitments under the WTO Agreements and several investment protection treaties guaranteed capital and IP exporting states safe and secure property rights in the host state - India, much beyond the existing protection for citizen's property. Remedies for breach and standard of compensation for expropriation, direct or indirect, were judged by international rules and practices, beyond the control of local courts. To the extent that international expropriation and compensation rules provide foreign investors and IPR holders with stronger rights than India’s laws, they are also likely to provide them with stiffer property rights. In addition, change was evident in the nature of ownership of expropriated property. Nationalization (state ownership), which was the primary character of expropriations, was replaced by ‘corporate’ ownership with no respect for public purpose or just compensation. The recent stints of compulsory acquisition of land for SEZ underline the ‘reverse-discrimination’ or double standards perpetrated by the Indian state. The paper attempts to highlight this paradox in India’s property rights regime in the changing global context. The paper argues for a constitutional rethinking on right to property, in the post liberalization context, considering the new social and political realities, particularly from the viewpoint of individual private owners whose identity and livelihood are attached to the property.

Eminent Domain and the Rhetorical Construction of Sovereign Necessity

This article examines the logic of necessity in eminent domain cases in the United States. While much has been written about “public use” justifications as adjudicated by courts, less attention has been paid to necessity. In part this is because public use is an explicit part of Fifth Amendment limitations on “takings” while necessity is part of the buried logic of sovereignty that grounds its exercise. Readings of pivotal cases from McCulloch to Kelo lead us to question recent attempts to revive necessity as a legal standard for reining in eminent domain power.

Voter decisions on eminent domain and police power reforms

One unresolved issue arising from the use of eminent domain power involves how the perceived benefits and costs of eminent domain power affect people’s positions on the reform of eminent domain and police power law. The paper addresses this issue by estimating a voting model that explains voters’ decisions on eminent domain and police power reform referenda in the US. Estimates indicate that eminent domain referendum outcomes hinged on voters’ fundamental values and ideology, and voters’ immediate self-interest. Voters’ fundamental values and ideology affects referendum outcomes insofar as educational attainment in a county has a statistically significant effect on support for reform. Despite the greater incidence of eminent domain in low income and poorer communities, success of reform referenda in this study was found to be greater in counties with higher incomes and lower unemployment rates. This implies that whatever asymmetry exists in the exercise of eminent domain law across income groups does not affect voter reaction to eminent domain reforms. Moreover, counties with high unemployment rates consider the larger potential benefits from urban renewal projects in vote decision-making providing a link between self-interest and voting behavior.