Does the public have a right to a bigger and better laid-out medical district?

How about updated storefronts, modern neighborhoods?

Or is the individual’s right to keep and do whatever’s desired with one’s own property, even if it’s old or gets in the way, the greater right?

If the answer seems obvious, guess again. And let’s be clear: To date, eminent domain to expand the area around Kootenai Health isn’t proposed. Yet the law potentially allows it, and there’s the rub.

Eminent domain is a legal power granted to governments (and quasi-governmental agencies such as urban renewal agency ignite cda) to take private property for public use. Note “taking” isn’t always an ownership transfer; it can also be merely access to a portion of property, such as beachfront or a utility company’s access to poles.

The Takings Clause of the Fifth Amendment to the U.S. Constitution doesn’t prohibit this. It does place limits, involve a court process, and require “just compensation” — which can be a lengthy determination resulting in even more than market value, if that doesn’t restore the owner to the same financial position as before the taking.

The Takings Clause was also typically interpreted by SCOTUS to mean that other economically viable options wouldn’t work, before a taking was justified. In practice, that part probably doesn’t get as much attention as it used to.

For many years the Fifth Amendment’s “public use” limited government takings to roads, parks, schools, utilities or other public needs met by public entities. Then a 2005 case from Connecticut ratcheted up the controversy.

The U.S. Supreme Court ruling in Kelo v. City of New London essentially stretched “public use” to include additional economic benefit from private development, such as increased tax revenue and jobs. The Kelo decision led to a nationwide backlash against a perceived overuse and potential abuse of eminent domain by local governments on private behalf.

While on the surface that sounds egregious (and unchecked, it could be), consider that sometimes private investment in problem areas results in economic growth that truly can benefit the public in big ways. Such was the case for the depressed economy of New London after a military facility closed.

As routinely happens with our ever-evolving laws, sometimes an avalanche can result when a light snow was expected. Fearing this, many states added their own eminent domain requirements by constitution or statute. Ours has both.

Yet for a state typically on the side of minimal government power, Idaho’s eminent domain limitations got a D+ rating from 2007 Eminent Domain Report Card of the Castle Coalition, a nationwide grassroots property activism project by the libertarian group Institute for Justice (obviously not an unbiased opinion). Most states were graded either B or D, with a few F’s. Florida and both Dakotas got an A.

Idaho’s Constitution specifically defines “public use” with examples, adding that the use must be “necessary to the complete development of the material resources of the state, or the preservation of the health of its inhabitants.”

In 2006, Idaho passed House Bill 555, codified (and later amended) in Idaho Code Title 7, section 7-701A which provides eminent domain “shall not be used … (as) merely a pretext” for a private transfer or condemned property, or economic development. Other statutes permit eminent domain in various circumstances, such as public health hazards and waterways; limit the power of cities and counties to delegate it; or address compensation and other specifics. The “D” grade was assessed because the Castle Coalition concluded Idaho’s addition made minimal impact.

Guess it depends on where you draw the line. Conflicting rights are a moving target in constitutional law, with borders shifting as time passes and society weighs in. As any longtime legislator can attest, eminent domain is an ongoing, recurring theme in statehouses.

We won’t hear the end of this argument for a long time, if ever.

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Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Contact her at Sholeh@cdapress.com.