What is Eminent Domain?
In Pennsylvania, eminent domain gives the government the power to take your property, even if you don’t want to sell. But under the Fifth Amendment, eminent domain must be for a “public use,” which traditionally meant projects like roads or bridges. Meanwhile, the government must pay the owners “just compensation” for their property.
The Supreme Court Decision, Kelo v. New London, Made It Much Easier to Abuse Eminent Domain
Unfortunately, the U.S. Supreme Court gutted federal protection against unconstitutional eminent domain when it handed down its decision in Kelo v. New London in 2005. By a vote of 5-4, the Supreme Court dramatically expanded the definition of “public use” to include private economic development. In other words, local governments can condemn homes and businesses and transfer them to new owners if government officials think that the new owners will produce more taxes or jobs with the land.
As Justice Sandra Day O’Connor warned in her dissent: “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
Pennsylvania Responds to KElo
In 2006, Pennsylvania passed the Property Rights Protection Act (SB 881), which prohibits the use of eminent domain “to take private property in order to use it for private enterprise.” The act significantly tightens the definition of “blight” in the state’s eminent domain laws and places time limits on blight designations. The law also provides that agricultural property cannot be “blighted” unless the Agricultural and Condemnation Approval Board determines the designation is necessary to protect the health and safety of the community.
The act also requires that a majority of properties representing a majority of the geographical area must meet certain criteria in order for an area to be declared blighted. Unfortunately, properties owned by the condemner can be included in this calculation—a crucial flaw that allows an otherwise perfectly fine neighborhood to be declared “blighted” because the government allowed properties they owned in the neighborhood to fall into decay.
Another major drawback of the act—and it was a significant one—was that it included exceptions that allowing certain municipalities and counties (Philadelphia, Norristown, Pittsburgh, and Delaware County, among others) to condemn for another seven years in areas that have already been designated as “blighted” under the state’s urban renewal laws. This exception has since expired. Currently, all owners and renters in the state enjoy the increased protection of Pennsylvania’s eminent domain reform.
In addition to legislative reforms, the Pennsylvania Supreme Court has handed down several decisions that further protect property owners. First, in 2007, the Court found that a claim of taking for open space was pretextual. “The government is not free to give mere lip service to its authorized purpose or to act precipitously and offer retroactive justification.”
Three years later, the Court remanded a petition involving a condemnation for a private road. Courts must determine if the public is the primary and paramount beneficiary for a taking to be valid.
Then in 2014, the Court rejected a proposed taking of a drainage easement because it was unnecessary to the public and would have been mainly used “to develop a residential subdivision.” “Whatever public benefit may ensue from the drainage easement,” the Court ruled, “it is being taken to be used for private enterprise and, as such, is prohibited” under the state’s robust post-Kelo reforms.
Based on their legislative reform and court rulings, Pennsylvania earns a B+ for its protections against eminent domain abuse.
Is the Government Trying to Take Your Home or Business with Eminent Domain?
PC: Eminent Domain
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Even if the Institute for Justice cannot take your case, IJ has created the Eminent Domain Abuse Survival Guide to help people fight back. These methods for grassroots activism can be enormously successful. Through community organizing and activism alone, the Institute for Justice has teamed up with local communities to help save nearly 20,000 homes and small businesses from condemnation or being labeled as “blighted” or “in need of redevelopment,” the precursor to eminent domain in many states.
Eminent Domain Facts
Myths about eminent domain abound. Here are the facts:
Eminent Domain is Not a “Last Resort”
Eminent domain is not just abused when people lose their homes in court. It is also abused when a home or business owner sells under the threat of condemnation. The government’s ability to condemn property is so ominous that the mere threat of eminent domain influences all “negotiations.”
Truly voluntary negotiation is impossible when one party has the power to get what it wants no matter what; if the government can take any property it wants, owners have no real power in negotiation. So when officials say they will use eminent domain only as a last resort, it simply means they will use force to take people’s property against their will if they do not agree on a price.
Economic Development Does Not Need Eminent Domain
Projects that use eminent domain often fail to live up to their hype and can end with vacant lots and empty promises. By imposing tremendous costs (both social and economic) in the form of lost communities, uprooted families and destroyed small businesses, eminent domain often thwarts, rather than helps, economic growth. Instead of seizing private property, cities can streamline regulatory barriers, like permitting and zoning laws, and usher in development without eminent domain.
Eminent Domain Harms Vulnerable Communities
Communities targeted by eminent domain for private development are much more likely to be communities of color, while residents are much more likely to live at or below the poverty line and have lower levels of income and education than surrounding neighborhoods, according to research by the Institute for Justice. Cities often target these communities for condemnations, as government officials know the residents there rarely have the political clout or the financial means to fight back.