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Community Forum: Eminent domain laws scrutinized

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Posted on August 21, 2014 |
By Betty Nuovo



This week’s writer is Rep. Betty Nuovo, D-Middlebury.

There has been a great deal written and said recently about eminent domain, public good, including a great deal of confusion. To make sure that everyone is talking about the same things when they use these terms, it is important to begin with the Vermont Constitution, Vermont statutes and the annotations (lawsuits brought up in the Supreme Court under this issue) and for further clarification with such aids as a good law dictionary. This is what I have done and hope that the following quotations will help the ongoing discussion.

Vermont Constitution, Chaper 1, Article 2, Eminent Domain:

“That private property ought to be subservient to public use when necessity requires it, nevertheless, whenever any person’s property is taken for the use of the public, the owner ought to receive an equivalent in money.”

Annotations (case law) under the Constitution section above (I could not find that these cases were overturned by a later case so it must still be law):

“A valid grant of power of eminent domain can be made only when the taking is for a public use within the meaning of this article. Deerfield River Co. v. Wilmington Power and Paper Co. (1910) 83 Vt 548.”

“The right of eminent domain can never be exercised for any merely private purpose, however much the public utility or convenience may be thereby subserved. New England Trout & Salmon Club v. Mather (1895) 68 Vt 338.”

“The end to be accomplished is the ultimate test of whether a contemplated exercise of the power of eminent domain is for a public use within the meaning of the article, and it is wholly immaterial whether the actuating motive of the enterprise is private gain, or whether the title or control of the property taken is vested in a natural or artificial person. Deerfield River Co. v. Wilmington Power and Paper Co. (1910) 83 Vt 548.”

“To have a ripe takings claim, plaintiff must have exhausted all administrative remedies including variance procedures and failure to do so results in a taking claim that is not ripe. Killington, Ltd. v. State (1995) 164 Vt 253.”

Public Good, Title 30 sec. 231:

“(a) A person, partnership, unincorporated association, or previously incorporated association, which desires to own or operate a business over which the public service board has jurisdiction under the provisions of this chapter shall first petition the board to determine whether the operation of such business will promote the good of the state. … If the board finds that the operation of such business will promote the general good of the state … it shall give a certificate of public good.”

Black’s Law Dictionary definitions:

“Public means. Pertaining to a state, nation, or whole community; proceeding from, relating to or affecting the whole body of people or an entire community. Common to all or many; belonging to the people at large.”

“Public use means, in constitutional provisions restricting the exercise of the right to take private property in virtue of eminent domain, means a use concerning the whole community as distinguished from particular individuals. But each and every member of society need not be equally interested in such use, or be personally and directly affected by it; if the object is to satisfy a great public want or exigency, that is sufficient. It may be limited to the inhabitants of a small or restricted locality, but must be in common, and not for a particular individual. The use must be a needful one for the public, which cannot be surrendered without obvious general loss or inconvenience.”

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