Property Rights

Eminent Domain Abuse in the Name of Parks and Recreation

What if one day you found out that a piece of property that had been owned by your family for generations was to be taken by the government using eminent domain? Perhaps it would be understandable to make way for a new high school, water treatment plant, or highway. But what if you found out it was simply because your city wanted to expand an already existing park?

Government powers are supposed to have checks and balances built in to prevent the inevitable overexpansion of authority—but the checks that limit eminent domain, to the extent any have really existed, have been eroded by court decisions. 

In 2005, when the U.S. Supreme Court was faced with the Kelo v. New London case, they opted to expand the powers of eminent domain by allowing property to be taken for the purpose of economic development. In his dissenting opinion, Justice Thomas wrote that “If such ‘economic development’ takings are for a ‘public use,’ any taking is.” In determining that the Kelo taking was constitutional, the Supreme Court broadly defined a public use as any use that may benefit the public.

This decision leaves any other limitations up to the states. In the two years after the Kelo case was decided, 44 states passed additional restrictions on eminent domain in order to restore some of the checks and balances lost.

While some restrictions exist, the current laws that govern eminent domain in Utah are broad and thus open to interpretation. Government agencies, local governments, and even private contractors can use this broad law to justify many uses of eminent domain beyond those that are necessary to provide essential services.

Because the law is so broad, courts lack the ability to protect property owners by holding the government accountable to a limited set of powers. So long as the government can reasonably argue that their use of eminent domain is somehow benefiting a county, city, town or its inhabitants, they violate no laws. Last year, a man in Utah experienced first hand the problematic application of these broad laws. 

He received notice that the city government was attempting to acquire his land in order to expand a nearby park. The man had no desire to sell his property to the government, but the city invoked the powers of eminent domain to take it anyway. In the government’s eyes, they had met the constitutional requirements of providing just compensation and taking the property for a public use, but the man felt an injustice was occuring. The city had offered to purchase the land for just over one million dollars. 

However, when the property owner had his property privately appraised, it was valued at six and a half million dollars. On top of that, the public use for which the property was being taken was the expansion of a park. While this particular case is still pending, previous cases in Utah have demonstrated that courts often side with the government in these situations. Without rigid controls on their power, government agencies are likely to win in court.

The laws that govern eminent domain should function to protect citizens—not to enable government overreach. Because parks, recreational facilities and other non-essential services are not specified in law as prohibited uses of eminent domain, they are by default allowed. These use cases are not true “public uses” for which the government should be taking property from people. 

Legislative reforms in Utah are necessary to limit obviously non-essential uses of eminent domain, and hold government actors accountable for excessive uses of such a broad power. Elected officials who stand for property rights should earnestly support such reforms, over the objections of government agencies that wish to preserve their broad power.