One problem with the power of eminent domain is that the government and not the public or the free market determines both “public use” and “just compensation.”
Utah, typically non-conformist in the legal arena, has once again taken the road less traveled. And it may have borrowed one idea from a system recently developed in India. Yesterday Business Week reported that Utah, one of the first states to rein in the use of eminent domain, has proposed legislation to allow a redevelopment authority to condemn property. But House Bill 365 would also allow the community to determine which takings qualify as being in the public's interest:
It requires 80 percent of those who live in a proposed redevelopment project area to sign a petition saying they want the land condemned. It would also require a two-thirds vote of a city's redevelopment authority board to approve the condemnation.
India, the world’s largest democracy, may follow suit in launching this concept. Swaminathan S. Anklesaria Aiyar, columnist for the Times of India, recommends several changes in India’s land acquisition laws, including one which empowers the farmers:
The new land law should provide for state governments or corporations to negotiate acquisition proposals with farmers, and then let the farmers vote on the deal. If a large majority--it could be two-thirds or three-quarters--vote in favour of selling, this should be binding on the minority. In this scheme, the final decision will lie not with the state government or corporation, but with the community of farmers. It will constitute community-led acquisition. It will respect both the property rights and dignity of farmers, and make them full partners in industrialisation.
It is notable, however, that India was already moving in the right direction by giving the public a say in “just compensation.” Now it may also be fair.
Under its current system and industrial development plan, the Indian government has defined Special Econonomic Zones (SEZs) which permit them to condemn privately owned land for industrial development.
India Times Blogs reported that a major company, Reliance Group was purchasing land directly from the farmers instead of having a government agency acquire it. This resulted in landowners receiving ten times more than the price that would have been offered by the government. Reliance Group would have been able to have the government agency acquire the land through the principle of eminent domain under India’s plan to industrialize by designating SEZs.
Finally, the property owner may get a price that would be paid between a willing buyer and a willing seller. Nevertheless, India has a long way to go in defining “public use” to ensure that the power to condemn cannot be easily abused.
New Jersey Eminent Domain Blog: http://www.njeminentdomain.com