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Courts Begin Putting the Brakes on "Takings"

By Linda Alderman

The power of government to take private property for a public use, with payment of fair compensation, has been nearly unassailable in our legal system.

In most condemnation cases, the right to take the property is a foregone conclusion, and the parties litigate only the amount of compensation. Courts generally have deferred to the government's articulation of a public purpose for the taking, even when private parties also benefit.

In recent years, there has been a trend toward closer scrutiny of a proposed condemnation to find a paramount public purpose, and even to stop the proceedings where one is lacking. Property owners targeted for a taking are receiving a more sympathetic hearing when they contend that the true beneficiary of the proceedings is not the public but simply another private party with designs on the property.

Although they were largely unsuccessful, challenges to takings as lacking a public purpose first arose in urban renewal cases. The government would condemn blighted property so that it could be redeveloped, usually by private developers. The government could point to the overriding public benefits from such revitalization of property and could successfully argue that benefits to private parties were incidental.

In successful attacks on use of the condemnation power, it is harder to find the public use and easier to see private profit as the motivation for the taking. For example, in one case, the developer of an automobile racetrack wanted some neighboring land for a parking lot, but the company that owned the land did not want to sell it. The developer reached an agreement with a regional authority that had condemnation powers, by which the developer would pay for proceedings to condemn the land in return for getting the property from the authority immediately after the condemnation. A state supreme court found that this transparent arrangement to take land so that it could benefit the racetrack developer was a misuse of the eminent domain power. As the court put it, that power "is to be exercised with restraint, not abandon."

In another successful challenge to a condemnation, a city tried to take land owned by a church in order to turn the land over to a major discount retailer. The property had been vacant for a decade, despite having been declared a blighted area. The city tried to use blight removal and redevelopment of the property to justify its actions. This reasoning was undermined by the city's denial of permits sought by the church for more church buildings on the property, even though such a use would have eliminated blight just as well as the commercial use favored by the city.

The more believable motive for the city was its desire to generate more revenue by putting a taxable business on what had been tax-exempt church property. But the city had other ways to generate revenue. As to both of the city's ostensible goals--blight removal and generation of revenue--the city was "using a sledgehammer to kill an ant." In issuing an injunction against the condemnation proceedings, the court characterized the condemnation as resting only on "the desire to achieve the naked transfer of property from one private party to another."

Attorney Alderman  regularly represents land owners, operators, and other impacted parties in matters related to Environmental Law, Wetlands, Land Use or Zoning. 

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