When a private citizen takes government property, a federal crime — it’s generally called “theft” — but when the government takes private property, it’s called “eminent domain.”
According to the Legal Information Institute, “Eminent domain refers to the power of the government to take private property and convert it into public use. The Fifth Amendment provides that the government may only exercise this power if they provide just compensation to the property owners.”
The caveat seems to be that government entities can seize private property and offer to pay for it after the fact. At least, that appears to be the case down at Wings Ole on University Avenue, where the City of Morgantown built a public restroom and sidewalk on 800 square feet of Dan Nagowiski’s property, eliminating seven of the restaurant’s parking spaces (DP-03-14-20, DP-08-27-20).
For those who aren’t up to date, Nagowski verbally agreed to allow improvements to Ruby McQuain Park to encroach on about 35 square feet of his property, but no paperwork was ever signed. After months of giving Nagowski the runaround, the city finally acknowledged in March that the construction seemed to have been on private property. Five months later, in lieu of an apology or returning the property, the city has given Nagowski an ultimatum: Settle with us willingly or we’ll invoke eminent domain and you’ll have no choice but to take what we give you.
What the city has done is shameful. Period. It shouldn’t have happened in the first place. And now, instead of owning up to the mistake and making it right, city council voted to use eminent domain to cover their own hind-ends.
Eminent domain can be a good thing — it’s generally the first step in major infrastructure projects — but it’s supposed to be invoked before the tearing down and building up begins. Not retroactively to protect a government entity for what is essentially theft. The City of Morgantown failed to abide by the verbal agreement, failed to secure a legal contract to legitimize the agreement, failed to halt construction when objections were raised and now is using a loophole only government can use to avoid what would be a lawsuit — if not criminal charges — against a private company or individual.
Nagowski wants his property back. Unfortunately, there’s an infinitesimal chance of that. So if the city is going to use eminent domain to keep the property, then the “just compensation” owed to Nagowski should account not only for the value of the land itself, but also for revenue loss due to fewer parking spaces to service the restaurant’s customers. Parking is at a premium downtown and along the waterfront; free parking — like the kind you get by parking in a restaurant’s lot — is even scarcer. And less parking means fewer butts in the eatery’s seats, which means fewer sales, which means less revenue.
While the city’s taking of Nagowski’s property may not go against the letter of the law, to offer compensation that does not account for the lost revenue is not “just” compensation and violates the spirit of the law, resulting in little more than technically legal theft.
