Fair Compensation from the Government in Eminent Domain Cases

Nonprofit and Church Legal Trends - Free Edition - January February 2009 (free edition)

Assuming that the Government can constitutionally prove it needs to take the church or religious institution’s land and building, public condemnation of private property must include fair compensation to the religious owner.

“The first amendment protects freedom of religion, which has its roots in the hearts and souls of the congregation, not in inanimate bricks and mortar. Yet, religious faith and tradition can invest certain structures and land sites with significance which deserves first amendment protection. We recognize that church property is private property which can be taken by eminent domain for paramount public use, just as religious conduct is subject to appropriate regulations for the public good. When regulating religious conduct, however, the state may be challenged to justify its infringement of the totally free exercise of religion. We hold that under these circumstances, the state may be so challenged to justify use of its power of eminent domain. The [trial court] must weigh the plans and goals of the [city] as they bear on the particular land in question, against the right of the [church] to maintain a brick structure which the church claims is unique and does not conform to the general plan for development of the block or the area. The only conclusion which we can draw is that we must balance the interests involved in the controversy before us and recognize that the state must show a substantial interest without a reasonable alternate means of accomplishment if the state is to be constitutionally allowed to take the birthplace of the [sect].”

A federal appeals court has also noted that "in the case of nonprofit, religious or service properties, cost of replacement is regarded as cogent evidence of value although not in itself the only standard of compensation. But people do not go about buying and selling country churches. Such buildings have no established market values. Consideration must be given to the elements actually involved and resort made to any evidence available, to prove value, such as the use made of the property and the right to enjoy it."