Eminent Domain Abuse
Statutory suggestions to stop abusive intimidation and arrogant disregard of landowners.
Taken from testimony by:
Kerry K. Messer
President, Missouri Family Network
Presented to:
Missouri House of Representatives
Interim Committee on Eminent Domain
Monday, October 20, 2003
Community Center, Linn, Missouri
COMPENSATION - CONDITIONS - CONSTRAINTS
COMPENSATION
1. Owners should be able to bill for documented labor and other cost associated with ongoing maintenance problems caused by the utility.
Common testimony from property owners adversely affected by utility easements points to the practice of taking entities making construction clean-up and/or ongoing maintenance agreements (verbal or otherwise) in order to secure contracts, only to forget those promises after profits start flowing through the easements. Property owners are often left to absorb the cost, in terms of time, finances and aesthetics, despite assurances that were offered in securing contractual easement rights. Statutory guidelines could protect citizens from the arbitrary dismissal of significant grievances.
2. All lost resources should be required to be reclaimed, restored, or recompensed.
Eminent domain of easements, or other partial property taking, rarely condemns small tracts of land without having a significant impact on adjoining properties. Often the use and/or maintenance destroys much larger tracts of land. The condemned portion is often stripped of valuable resources and left as an eyesore or impediment to the remaining portions of the landowner’s home/investment. Wooded areas are almost always clear-cut with valuable timber destroyed. Merchantable lumber is drastically devalued by handling and marketing practices. Firewood and other potential resources owned by landowners are demolished and the ground is left unusable for conversion to agriculture or other purposes. Weeds and undesirable plants are actually fostered which invade and threaten adjoining fields.
3. Profit sharing.
A minimum, pro-rated share, of annual net profits from either utility easements or other development projects should be distributed to adversely impacted or displaced landowners. In short, these property owners are investors in the project, willing or not. Their property is a significant part of the investment or the property would not have been targeted. Property owners drug through condemnation are deprived of any return on their portion of the investment as punishment for not ‘cooperating’. This is despite the fact that they legally owned the original investment. Such ‘royalties’ should be paid just like those on anyone else’s shares invested in the venture.
4. ALL property or rights directly or indirectly taken through eminent domain must be compensated for – not just highlighted portions.
The common language of an easement contract specifies a clearly delineated portion of property which a proposed compensation package is offered for. However, the common practice of many taking authorities is to word such contracts to include various rights to extended properties also, yet without compensation. In normal situations landowners eventually receive minor compensation for what in effect turns out to be an easement without borders. Either all eminent domain uses should be prohibited for borderless easements, such easements be required to be specified as ‘bordered or borderless’, all rightful compensation required, or some combination of the three.
CONDITIONS
5. Automatic reversion to owner(s) under clearly delineated abandonment guidelines.
All properties, whether taken in total or for easement, should be allowed to revert back to injured property owners if such property is abandoned, undeveloped, or if misused by the taking authority. Eminent domain should never grant “perpetual” rights to property not actively used for the stated purpose used to justify the taking.
6. Taking entities should be required to pay for at least 50% of ALL legal fees of injured property owners.
Agencies, businesses, institutions, and other entities authorized to exercise civil rights of eminent domain are also predisposed to take unfair advantage of landowners due to their financial strength, legal expertise, experience, and other resources. The use of condemnation proceedings universally creates a “David & Goliath” battle in which the property owner(s) have no slings nor stones. A 100% formula requiring all fees to be born by the taking entity would result in a lack of incentive for the owners to cooperate, but a 50% relief of this burden would help to level the playing field for property owners. (It would be akin to providing David with either a sling or stones while requiring him to acquire the other for himself.) This would also encourage taking entities to be a little more reasonable in negotiations short of condemnation.
7. All owners of a connected project should be in court together.
A list of all owners on a continuous easement or other project should be provided to each individual owner. Once again the disproportionate resources of a taking entity creates an unreasonable advantage over the various victims of eminent domain. These individual property owners usually don’t even know who each other are and do not know how to identify one another. This seemingly minor issue allows politically connected and empowered entities to “divide and conquer” isolated individuals, families, or small businesses.
8. Notification outlining all legal rights should be presented to all connected project property owners.
Any authority which seeks to obtain property or property rights, and which possesses the power of eminent domain, should be required to provide ALL legal options to landowners before any negotiations or condemnation proceeding occur. This helps to limit taking advantage of the average person’s ignorance of their legal rights. Such a ‘Miranda Rights’ approach to property would work to ensure that every affected landowner gets the same opportunity for fail legal treatment.
CONSTRAINTS
9. Private property seized through eminent domain should be statutorily limited to single use-of-purpose only.
Easements taken by utilities, highways, or other entities, should be restricted to being used only for the express purpose authorizing the condemnation. Further or duplicate uses should require a separate condemnation and/or negotiation of compensation for the property owner. Other ‘whole property’ takings in which the original land ownership is dissolved must be limited to the stated purpose of the condemnation in order to protect property owners from misrepresentations of potential property values. Second and/or third generation developments utilizing taken lands should compensate displaced owners equitably.
10. Any forced ‘takings’ should be limited to lease arrangements which aid in providing fair market compensation to owner(s).
At the least, any eminent domain use should be negotiated as either an outright purchase of easement, or, under a statutory guaranteed lease, with scheduled rates that can be renegotiated every ten or so years – based on market values. This is especially critical when utility easements devalue lands and destroy development opportunities otherwise available to the landowners, or, in cases such as commercial development, when condemned land is converted to income producing developments.
11. Political contributions from beneficiaries of eminent domain should not be allowed to those who provide/maintain such authorization.
Contemporary political ethics and potential corruption schemes – especially among smaller political subdivisions – demand that the integrity of “public good” eminent domain be protected from the most offensive abuse of the procedure.
12. Prohibit private profiteering.
Eminent domain by definition is supposed to be justified because of the “public good”. If restricting or dissolving property rights for some people for the “public good” results in profits for identifiable individuals connected to the taking entity, the underpinnings of the law have arguably shifted away from civil societal benefit to unjustifiable tyranny. Such abuse of eminent domain creates a system whereby the politically stronger simply employs the power of the state to steal from whomever, in order to collect the profits. Eminent domain laws which allow for the condemnation of private property under the auspices of benefiting the “public good” but serve to provide profits to those utilizing such taking authority cannot be defended as just or equitable. These profits, by all justification, belong to the landowner.
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