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News Maryland Harford County Bel Air

When private property isn't [Editorial]

Eminent domain is one of those governmental attributes that has a fair amount in common with taxes.

Both are inherent powers of any government, dating to the earliest days of government.

Both can seem particularly onerous to the people who end up having to cede money or property to the government.

And, like it or not, both are necessary to the functioning of government.

Taxes are relatively easy to understand. If no one pays taxes, there is no government, which means everything from no national defense to no youth league athletic fields.

Eminent domain can be a bit more abstract, though its practice was strictly limited in the early days of this country when the Bill of Rights was appended to the Constitution. Specifically, the Fifth Amendment, which more famously protects people accused of crimes from having to incriminate themselves, requires that private property shall not be taken for public use "without just compensation."

There are essentially two ways to determine just compensation. The first is for the government to negotiate with the owner of a property in question and come to terms with the owner.

The second is through a process known as condemnation, under which the government seizes a property and pays the owner what it determines to be a fair market value.

The negotiation process is generally preferred, as a practical matter and from a philosophical perspective. There are instances, however, when the owner of a particular property key to one or another public project – say, for example, a highway – makes what could be fairly characterized as unfair demands on the government. Since the government is nothing more than the agent of the taxpaying public – at least in this country – it is reasonable for the government to have a way around such situations.

A more abstract form of eminent domain comes in somewhat more menacing guise, the form that lately is being used by Columbia Gas Transmissions to secure easements to build a pipeline parallel to an existing pipeline, part of which runs through Fallston.

Strictly speaking, Columbia Gas Transmissions is not eligible to exercise the power of eminent domain because it is a private business, not a sovereign government. As a corporate entity, it has no more right to embark on a hostile purchase of land than any ordinary person. Governments have seen fit, however, to grant their eminent domain powers to public utilities and other private, corporate entities. Such is the case in the matter of the Columbia Gas Transmissions' plan for a new pipeline through Fallston.

The U.S. Federal Energy Regulatory Commission has made a ruling that the gas transmission line is necessary for the public good and, therefore, warrants the invocation of eminent domain powers.

It is easy to make the case that utilities and energy companies are vital to the maintenance of American society, and as such from time to time they may be entitled to a degree of assistance from the public sector. It would be easy to understand, for example, a public policy move that facilitates the restringing of existing electric lines through a community.

Cases like the Columbia Gas pipeline, however, are among those that make the partnership between a government entity and a massive corporation seem rather sinister. Power companies are well-financed, and well-represented in places like Washington, D.C. They have people on staff who pay close attention to the procedures of government and, likely as not, can secure permission for certain kinds of projects before the people in the affected communities even know there were ever hearings on the matter at hand.

There was a time when public utility meant that the corporation in question was afforded special considerations on matters such as eminent domain, but also was subject to a more stringent level of regulation – to include price regulation – on the grounds that many such corporations constituted natural monopolies in the areas they serviced.

Increasingly, government regulation has become regarded as almost universally undesirable, even government regulation of natural monopolies like certain kinds of energy companies. Unfortunately, the relationships that benefited energy companies in the days when they were more strictly regulated – including the relationship under which governments bestow eminent domain powers on private companies – have remained in place.

This unfortunate reality gives certain large and moneyed corporate entities unfair advantages in their dealings with most people of more modest means.

Unfortunately, the trend in the public sector has been in the direction of expanding the practice of using the government's power of eminent domain to benefit large, private corporations. A few years back, there was a public uproar when a redevelopment bill was sailing through the Maryland General Assembly that would have allowed Baltimore County to seize private properties in Essex and turn them over to a developer for purposes of advancing a redevelopment project.

Thanks to the uproar – and the intervention of Harford County legislators to include Sen. Nancy Jacobs, and Dels. Rick Impallaria, J.B. Jennings and Pat McDonough – the particular piece of legislation ended up being killed.

Maryland, however, retains a brand of eminent domain known as "quick take" under which property can be taken with the "fair compensation" being determined long after the facilitated project is underway.

Taking of property through eminent domain may well be a necessary authority of government, but it really should be used a lot more sparingly than it has been in modern times.

Copyright © 2014, The Baltimore Sun
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