Is eminent domain fair?

Learn about eminent domain and how a Supreme Court ruling has changed the game. Find out how Delaware law impacts this federal law.

The idea of eminent domain is to allow the government or other public authority to take private land for public use. When this occurs, the land owner has a right to fair compensation for the land. This power is most often exercised to acquire property needed to expand roadways, build schools or install utilities. However, the property may have other uses which, when the power is exercised for those purposes, could be considered an abuse of the power. Some people in Delaware feel eminent domain is often used to overstep Constitutional boundaries.

The Constitution and the Supreme Court

The power of eminent domain is limited by the 5th Amendment to the U.S. Constitution. Some conservatives believe that the power may only be used for situations where the property taken is for public use. However, the Supreme Court issued a ruling in 2005 in the case Kelo v. City of New London that changed things.

In Kelo, the Court said that private companies could use eminent domain for economic development. Some believe that this ruling completely undermined the Constitution's guarantee that eminent domain will be used only when the property is needed for a public use. For those subject to eminent domain, this ruling creates a challenge such that, most cases are now about trying to get more money for the land rather than fighting to keep the land.

How Delaware handles eminent domain

Delaware has its own laws pertaining to eminent domain that can help make the process less frightening for private land owners. Delaware law restricts eminent domain to public use situations and, even then, limits that use strictly.

Delaware defines public use as that by public agencies or for a few other specific situations. For example, installation of utilities is permissible under the law. The law also allows for eminent domain in cases where the land is needed for transportation, to remove properties that are a nuisance or a threat to public health or for situations involving the protection or management of natural resources.

In any case, the Delaware land owner has certain rights and protections. The entity that wants the land must first try to go through normal channels to buy it. It must also offer at least the appraised value for the property. Finally, if the land is taken by the power of eminent domain, the entity must give the property owner a 90-day notice before taking ownership.

The battle for landowners faced with an eminent domain situation is not an easy one. If this is happening to you, you should contact an attorney.