Any drivers who have careened around the “S curve” portion of Interstate 95 in Pawtucket have probably wondered why the road was built that way. What they may not know is that the snake-shaped portion of highway is an example how government’s use of eminent domain shapes lives and landscapes.

According to past reports in the Providence Journal newspaper, the nerve-wracking curves on the Pawtucket stretch of highway are the result of the state being unable or unwilling to use eminent domain to take certain prestigious properties for the Interstate construction – necessitating that the road be built around them.

Eminent domain is a broad governmental power and is in the news now as the Town of Johnston has attempted to use that authority to block a proposed multi-unit complex that would include affordable housing on a roughly 30-acre parcel at 178-200 George Waterman Road.

In a public statement issued in December, Johnston Mayor Joseph Polisena Jr. strongly stated his opposition to the proposed 250-plus unit development, saying he would use his authority and all legal means to fight it for the benefit of the town.  He did not specifically mention the use of eminent domain powers at the time.

So what exactly is eminent domain and how does it work?

In simple terms, eminent domain is the governmental authority to take private property for public use/public purpose.  And while eminent domain is not explicitly outlined in the Constitution, the Fifth Amendment specifically imposes limits on it, stating that government can only use this power, also known as land taking, if “just compensation” is provided to the owner of the property that is being taken for “public use.”

It is a power that can be exercised by federal, state and local governments.  Many cases are transacted quietly, but others are controversial due to high public interest and, sometimes, long-running litigation.

Attorney Stephen J. Angell handled one of the state’s more recent and much-publicized eminent domain cases last year in Coventry. As the town’s solicitor, he worked with local officials to successfully achieve the taking of Johnson’s Pond and the dam that controls it. The pond had been controversial for years as owners feuded with the private owner, Soscia Holdings, over changing water levels that left many lakeside homeowners looking out on mud flats rather than shoreline.

Angell, who is also solicitor to the Cranston City Council, declined to comment on Johnston’s case, but in an interview last week reviewed some of the basics of eminent domain law in Rhode Island and reviewed some of the actions taken by Coventry regarding Johnson’s Pond.   

He said that while eminent domain is a broad government power, it requires thorough preparation work.  In the Johnson’s Pond case, he said, experts had to be consulted to come up with a price for the pond and the dam – plus take into account the work that remains to be done on the damn.   Also, specific local actions, such as authorization from the Town Council, had to be executed.

In the end, the town received court approval to acquire the pond and the dam for $175,000 – a price that Soscia Holdings has said they will challenge in court.

“It’s about a good process and getting “all the pieces in place,” Angell said. “But at the core is public benefit.  It wasn’t enough for the town of Coventry that it did not care for the stewardship of the private owner, we had to show that we had a purpose, and that purpose was to benefit the public.”

Like Angell, Monica Teixeira de Sousa, a professor of law at Roger Williams University, declined to comment on the court actions pending in Johnston, but did discuss eminent domain laws.  The crux of the action – whether it occurs on a local or federal level – is that the governmental power be used for the benefit of the public, she said. However, she added, exactly what defines “public benefit” continues to evolve as court decisions on various cases across the country either set new precedent or introduce differing interpretations of eminent domain laws.

Probably the most dramatic change, she said, came as the result of a 2005 U.S. Supreme Court decision that, on a 5-4 vote, affirmed the city of New London, Connecticut’s right to take residents’ homes in the Fort Trumbull neighborhood for private economic development – in this case specifically for the Pfizer pharmaceutical company. (Kelo v. New London.)

In the past, Teixeira said, there had been a general belief that land taking by eminent domain was for land to go to a governmental entity or public use.

“This case pushed the definition of what public use is to the outer limits,” said.  “What the court was basically saying was that (a public land taking) can even include economic development.”

The New London case became commonly known as “the Little Pink House” case because one of the residents fighting to save their homes was Susette Kelo who owned a two-story, cottage style house painted pink.

According to past media reports and numerous legal discussions posted on the Internet, the New London Supreme court decision allowing eminent domain for economic development sparked debate that continues today.  It also prompted some municipalities to modify their own eminent domain laws to address or restrict the taking of public land for private economic development.

In Rhode Island, economic development is cited as a permissible reason for an eminent domain land taking, but a section of the law (Rhode Island General Law, 42-64.12-7) spells out certain restrictions and processes that must be followed. One of the stipulations in such cases is that the owner be compensated with 150-percent of full market value of their property.

According to the Institute for Justice, a national, public, non-profit law firm, the New London case had a less than illustrious ending. The economic development plan with Pfizer never materialized and the neighborhood that was razed for the project sat as vacant land for more than 20 years.

The case did not escape Hollywood’s attention, however. In 2017, the movie Little Pink House, based on a book by the same name written by Jeff Benedict was produced. The American-Canadian production included actors Catherine Keener, Jeanne Tripplehorn and Aaron Douglas.

Another key part of any eminent domain action, according to Angell is determining appropriate compensation for the landowner.  In the case of Johnson’s Pond, he consulted with numerous experts because of the case involved a popular body of water and a dam.

“The exercise of eminent design was not designed as a weapon to be used by a government (entity),” Angell said.  “It is designed for the purpose of public benefit to the citizenry.  The government has to show that it has a higher and better use, and is ready to pay the owner.”