Serving Clovis, Portales and the Surrounding Communities

No justice in 'eminent domain' abuse

Steven Greenhut, Guest Columnist

Mention the term “eminent domain” to the average American, and you’ll be greeted by one of two responses. The first, and most common, is for the person’s eyes to glaze in utter boredom. This does not initially sound like a sexy topic, and most people would prefer to be anywhere else than with someone who wants to talk at length about an arcane legal doctrine.

The second response is for people to say, “Oh, yeah, that’s what government sometimes does when it builds a highway or prison.” Those people who know what it means understand why a victim of eminent domain might be annoyed at the process or might have reason to fight for better compensation, but they rarely doubt the legitimacy of eminent domain.

Only the rare person understands, however, that eminent domain these days is not just about the government taking property for public works. For various reasons governments increasingly use eminent domain to take property from one private owner in order to give it to another private owner.

Typically, the victimized party is a small-business owner, a homeowner or some average Joe minding his own business, living the American dream in his own particular way. Then along comes a city manager or government attorney who informs him that he must surrender his home or business because a wealthy developer — perhaps a big campaign contributor and mover and shaker in the community, or an out-of-town corporation promising an expanded tax base for the city — has bigger and better plans for it.

Incredulity is the next usual response. People who learn about how eminent domain is abused can’t believe it is a common process. Victims of these increasingly common “takings” simply cannot believe they are being forced to leave their home or business, not for a highway, but for a Home Depot, a Wal-Mart or a privately owned business park or sports stadium. They are shocked to learn the legal process is rigged against them. They get little if any legal notice, no due process, and, mainly, all they can do is fight in court to get a better financial settlement. No one believes this can happen in America until it happens to them.

Well, at least the victimized property owners get just compensation, right? Even that is not true. Almost always, the government tries to lowball the property owner, in many cases offering a fraction of the property’s value. The victim must hire an expensive lawyer to argue for the “just compensation” the U.S. Constitution promises to eminent domain’s victims.

This hardly sounds like America. But this scenario is no aberration. In thousands of documented recent cases and many more that haven’t received any publicity, property owners are being forced to sacrifice their dreams to government agents acting on behalf of big developers, gambling casinos, large retail stores and multibillion-dollar corporations. Even when eminent domain isn’t ultimately used, the mere threat of it convinces many property owners to sell their properties at less-than-ideal terms.

Eminent domain limits the freedoms we all have to pursue our own economic futures. I think of the family that had planned for years to eventually sell their sewing-machine and vacuum-cleaner repair shop in Brea, Calif., and use the money to retire. But after their business was placed in a redevelopment area where it was subject to eminent domain, it lost most of its value. No one would buy it under the conditions.

When told about such outrages, many listeners assume eminent domain can only happen by stealth. Once the truth is revealed, they think, judges won’t permit it, and the powers that be will rally to the side of the abused property owners. Justice will prevail. But this rarely is the case. Usually, the political powers don’t lift a finger to help the victims. Surprisingly, the courts treat eminent domain victims with disdain.

I’ve seen newer shopping centers and handsome strip malls declared blighted. In one case, a Southern California city attempted to declare as blighted and then use eminent domain to take one store on behalf of its next-door neighbor. Both buildings were among the finest retail buildings in town. The only difference between the “good” building and the “blighted” one is that the blighted one was coveted by the other store, and the city feared this store would flee for another city if it wasn’t granted its neighbor’s property at a bargain-basement price.

This abuse of eminent domain is wholly inappropriate in a society that values individual freedom rather than central planning.

Steven Greenhut is a senior editorial writer and columnist for The Orange County Register in California. This article was excerpted from his new book, “Abuse of Power: How the Government Misuses Eminent Domain.” E-mail him at:

[email protected]