Eminent Domain: A Fancy Name for Property Theft

Are property rights more than theory?

Consider this question: do you have the right to peacefully use your property as you see fit?

It’s a question that has come up repeatedly as homeowners try to raise backyard chickens but are shut down by their city; as children try to operate a lemonade stand on their driveway but are told they need a permit; and as empty nesters want to take advantage of their vacant bedrooms and lonelier life by welcoming visitors to stay with them using a site like Airbnb, yet are prohibited by law from doing so.

What about the right to keep the property you own?

The government has long claimed the authority, under a law known as eminent domain, to take your property if it thinks it needs it, say, for building a road or a government building. But this law has been regularly abused for non-essential things, broadening the law beyond the more legitimate use cases its advocates cite in its defense.

Consider the Kelo case that made its way to the Supreme Court in 2005. This legal battle started when the city of New London, Connecticut, condemned Suzette Kelo’s home so that it could be used as part of a “comprehensive redevelopment plan.”

In plain language, the city initiated legal proceedings to steal her property and instead give it to a developer so Pfizer, a private company, could build a new facility.

Ultimately, the Supreme Court decided, in a split 5-4 ruling, that this use of eminent domain was allowed — that the government could take a person’s property for “economic development” purposes. It’s an astounding ruling to contemplate, as it basically said that if elected officials could come up with a more productive use of the land, they could forcibly take it from its owner and hand it off to the more productive entity to use.

The backlash was thankfully swift; most states, in response to this ruling, enacted laws to restrict or prohibit this abuse of eminent domain. Sadly, many were superficial and therefore inadequate.

In Utah, eminent domain is currently allowed for “public uses for the benefit of any county, city, or town, or its inhabitants”—a broad provision that needs narrowing. Some exemptions exist; for example, eminent domain may not be used for trails.

But more work is needed to protect property rights from abuse. For starters, eminent domain should be prohibited for non-essential things like parks, recreational or sports facilities, and economic development purposes. Utah law should be explicitly clear in this regard in order to deter elected officials from trying to exploit the law in their favor, and to the detriment of property owners.

Another area that needs work is identifying what’s actually necessary. Often times the government will claim that eminent domain is “necessary,” but there’s nothing in the law to give a judge any guidelines do determine whether a property taking is actually needed. The law should spell it out objectively so judges have a standard to go off of. Otherwise, they often defer to the decision of elected officials, thereby taking advantage of the ambiguity. The law instead needs clarity in order to protect property rights.

The right to own and use our property is fundamental, and should be protected from abuse. In that regard, Utah’s eminent domain laws still need work—and we’re committed to see it happen.