In his book “Takings: Private Property and the Power of Eminent Domain,” legal scholar Richard Epstein asserts the Fifth Amendment, like all laws outlining eminent domain, is “linked together in sentences of great power, but of equally great abstraction.”
This simply means there’s power within the words around taking property — just compensation, public use, due process — but great leeway regarding their definitions. Glenn Peterson, whose barn along Route 26 in Poland is being taken by eminent domain, is snared between them.
Peterson’s barn, which he bought eight years ago, is valued at $3,290 by the Maine Department of Transportation, which offered that to Peterson as “just compensation” for its taking. This amount, to Peterson, was far from just. Peterson, therefore, is justifiably upset.
Eminent domain is a wholly unpopular, yet important, sliver of law. It is so often reviled that those entities with eminent domain authority, such as utility companies, can make a big deal out of not exercising this power. This is almost tacit acknowledgement that the notion is distasteful.
Yet the argument with Glenn Peterson’s barn isn’t about the necessity of eminent domain, or even the rights of private property owners. It’s all about just compensation and value, which in the reams of court cases sparked by eminent domain, is perhaps the grayest of the areas.
In a story about Peterson published Tuesday, an MDOT official said the $3,290 offer to Peterson reflected an assessment of what the barn is worth, if it had a “For Sale” sign on it. Though myriad signs adorn the outside of Peterson’s barn, none of them said that.
And while we understand the principles of negotiation — start with a
figure, and work toward an agreeable compromise — MDOT could have saved
itself time and paperwork by flushing the first Peterson offer through
a straight-face filter before sending it to him, via certified mail.
There is no equating eminent domain to transactions between willing buyers and willing sellers. In those sales, the price is more determined by its value to the purchaser, not the owner. In eminent domain, where the purchaser has all the power, the opposite holds true.
MDOT’s offer of $3,290 is a stiff appraisal of what an aging barn by the side of the road is worth, if anyone wished to buy it and truck it away. Its worth to Peterson, however — who uses it for storage and studio space — is much more. This figure is arguably harder to quantify, but altogether more important.
It’s also the starting point for deciding how much he deserves to get from MDOT.

editorialboard@sunjournal.com