Robbins: Condemned to the public good

I’d venture that most folks, when they think of the word “condemn” — if they think of it at all — consider it in one of three contexts: he was condemned to a life of numbing labor; the home could barely stand and so it was condemned; or, his actions were so vile, he was publicly condemned. But, alas, there is another which we will get to in a sec and which is the subject of this column.

But first, a little verse before we get to the refrain.

I hate to use the metaphor, but as you likely know, folks have been butting heads about the East Vail parcel for many years. Much of the head butting has been about the herd of bighorn sheep that frequent there. Vail Resorts, which owns the undeveloped property, says it would be a peachy site for workforce housing. Opponents say that for all of Vail Resorts’ high-falutin’ talk about going green and being conscientious stewards, the last thing that we need is a bighorn graveyard — our own Little Bighorn if you will.

Unlike Custer’s Last Hurrah, however, this time, the cavalry has come thundering to the rescue. Last week in a squeaky-close 4-3 vote, the Vail Town Council donned their white hats and instructed Town Attorney Matt Mire to prepare a resolution of condemnation. Borrowing the third of our contexts in the first paragraph, above, did this mean the Town Council instructed my friend, Mr. Mire, to author letters of approbation?

It did not.

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What it meant was that the council had determined to exercise its sovereign right of eminent domain.


Say what?

“Eminent domain” is the power of a municipal, state, or national government to take private property for a public use. It is the right of a government to take private property by virtue of the superior dominion of its power over all lands within its jurisdiction and to convert it to some public good.

If the “sovereign” (here, the duly-elected Vail Town Council) determines that the public good would be better served with, say, open space upon which ancient herds of bighorn will be free to frolic, as opposed to the private use of proposed employee housing, so long as the i’s are property dotted, and the t’s crossed, the law says, it may do so.

The concept of eminent domain is nothing new under the historical sun. It has, in fact, existed since biblical times. The French “Declaration of the Rights of Man and of the Citizen” (1789), provided that, “Property being an inviolable and sacred right, no one can be deprived of it, unless the public necessity plainly demands it, and upon condition of a just and previous indemnity.”

Shortly after the French declaration, the United States similarly acknowledged eminent domain holding in the Fifth Amendment to the Constitution, “… nor shall private property be taken for public use, without just compensation.”

The Fifth Amendment grants the federal government the right to exercise its power of eminent domain, and the due process clause of the 14th Amendment makes the federal guarantee of just compensation applicable to the states.

With the curious exception of North Carolina (which grants the power via statute), state governments derive the power to initiate condemnation proceedings from their state constitutions. The constitutional and statutory provisions require federal, state, and local governments and subdivisions of government to pay an owner “just compensation” for property taken for public use at the time the property is taken.

The power of eminent domain authorizes the government to acquire private property for the common welfare, such as for reasons of public health or safety. What, precisely, is in the “public welfare” has of course been hotly debated. However, in Kelo v. City of New London (a 2005 United States Supreme Court case), in a 5 to 4 decision, the Supremes determined that local governments may force property owners to sell to make way for private (rather than public) economic development when government officials decide it would benefit the public, even if the property were not blighted and the new project’s success were not guaranteed. This was a shift of tectonic proportions. The decision provided that private property may now be taken, not to make way for, say, a public airport, but instead, for a Walmart, or a private condominium development, a casino, or whatever else may be deemed to stoke the economic engine.

But that ain’t what we’ve got here. Here, we are talking about elysian fields of grazing sheep juxtaposed against the private use of concrete, bricks, asphalt and mortar.

In any event, “just compensation” is required, in order to ease the financial burden incurred by the property owner for the benefit of the public.

Specifically, what the Fifth Amendment says is that, “No person … shall be deprived of life, liberty or property without due process of law; nor shall private property be taken without just compensation.” That’s it, the Constitution devotes all of nine words (or maybe 20, depending upon how you’re counting) to the subject of eminent domain and does so in sort of a presumptive, backdoor manner.

What I mean by this is that the wording of the Fifth Amendment “presumes” that private property may be taken for the public use and assures, simply, that when it is, the owner must be fairly compensated. There is assurance, too, that the property may not be taken without “due process” of law.

“Due process of law” means simply this: The law must be applied in its regular course of administration through the courts. Focusing on each word separately, “due” means “just, proper, regular or sufficient,” and “process” means the course by which a thing proceeds. Patching the two words back together, “due process” means regular or sufficient processing of a matter through the ordinary administrative procedures of the courts.

Condemnation is the power of eminent domain exemplified. Condemnation is the process by which private property is taken for the public use through the power of eminent domain. If eminent domain is the dueler’s foil, the condemnation is the thrust and parry. Eminent domain is the power to take, and condemnation is the application of that power.

Tying all this up in a neat Christmas bow, condemnation is the exercise of eminent domain by which “the public” can acquire private property for the public good. The Town Council has determined that preservation of our natural environment, bighorn sheep included, trumps the laudable goal of private workforce housing on the particular parcel.

Will Vail Resorts roll over without a legal fight, and if it claws and hisses, would it win? My bet is on the town.

Stay tuned.

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