Clear, accessible definitions for common urban planning terms.

What Is Eminent Domain?

2 minute read

One of the most controversial powers defined by the Bill of Rights, eminent domain is the term used to describe the government's power to seize private property for public use.

Eminent domain is enumerated in the Fifth Amendment as the ability of the government to seize privately owned property—as long as the government pays for the property it takes.

In a section known as the Takings Clause, the key wording from the Fifth Amendment (the same amendment that covers double jeopardy and self-incrimination) reads as follows:

...nor shall private property be taken for public use, without just compensation.

The Fifth Amendment would seem, therefore, to simultaneously enable the government to forcibly take private property and protect property owners from government takings. The line between illegal government taking and the constitutional power of eminent domain is therefore a subject of constant contention, resulting in a series of court cases that define the scope and limitations of governmental power to use eminent domain to seize property. For instance, the legal definitions of "public use" and "just compensation," two key terms in the Takings Clause, are still under negotiation in the courts and in academic literature on the subject. 

A few notable cases in particular define the scope of eminent domain powers relative to urban planning practice, starting with Kohl v. United States, 91 U.S. 367 (1875), which involved a parcel of land in the city of Cincinnati and upheld the constitutional right of eminent domain with just compensation.

Over a century later, Kelo v. City of New London, Connecticut, 545 U.S. 469 (2005) defined the government's power of eminent domain to include the seizure of property for the purpose of economic development (economic development qualifying as a "public use," according to the ruling). The Kelo v. New London case was depicted in a film called "Little Pink House" in 2017.

Also relevant to the field of urban planning, the Virginia Supreme Court provided a recent court ruling on the issue of eminent domain in Helmick Family Farm, LLC v. Commissioner of Highways. In that case, judges ruled that eminent domain valuation must consider the reasonable possibility of rezoning to increase the value of property.

As of this writing, the most recent occasion for eminent domain to enter the news came from Los Angeles, where a city councilmember suggested the use of eminent domain to seize property for the purpose of protecting affordable rental housing units.


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