Can private citizens still preserve land?
August 25, 2005 10:56 AM   Subscribe

What has been the impact of the expanded powers of eminent domain in the US on people attaching deed restrictions to property in an attempt to preserve natural/undeveloped areas? IE: are these restrictions basically worthless now if a business enterprise wants to use your wet land as a cooling pond or clear cut your valley for condominiums? Links to analysis or articles?
posted by Mitheral to Law & Government (3 answers total)
I'm not a lawyer, but a couple of points to consider:

* Deed restrictions are often the result of government action - for example, in Marin County, California, most of the undeveloped land has restrictions that were paid to land owners by the County or State or another government body. At minimum, this makes it less unlikely that a government will reverse its own action (protecting against development); at maximum, if a higher-level government owns the easement/restriction, a lower-level government can't use eminent domain.

* It still takes government action for eminent domain, which means that it takes a legislative body (city council, county board of supervisors, etc.) to act (and take a vote). I suspect that almost all cases of eminient domain involve purchasing already developed property. "Blight" is a common reason cited for eminent domain; undeveloped areas (at least today) don't meet that definition.

* The restrictions are not worthless if the easement is held by another party, such as the Nature Conservancy. Should eminient domain be used, that party would receive payment, which could then be used elsewhere for nature protection. (It is presumably more common to gift/donate an easement, which generates tax savings, to a charity, than to simply place a restriction on one's property, which does not.)
posted by WestCoaster at 11:53 AM on August 25, 2005

Analysis from World Changing.
posted by scazza at 1:17 PM on August 25, 2005

It seems like there should be plenty of existing case law on this, since it has virtually nothing to do with the recent Supreme Court case. Governments have been taking wetlands and farmland for decades to build highways (which are arguably much more destructive than condos).
posted by smackfu at 2:40 PM on August 25, 2005

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