PA Supreme Court on Public Use and Pretext - Take That, Kelo

An important case from the Pennsylvania Supreme Court.  In Middletown Township v. The Lands of Josef Seegar Stone, No 64 MAP 2006 (Dec. 28, 2007), the court upheld the power of a local government to take property "for any legitimate purpose," notwithstanding statutory language that did not extend authority to the town to take property for "open space."  However, the court struck down the attempted taking because the evidence showed that the real purpose of the taking was something other than the Township's stated reason. 

The Township filed a Declaration of Taking to condemn farmland the Stone family wanted to subdivide and presumably develop.  The Township wanted to take the property for "recreational and open space purposes."  Slip op. at 2.  The property owner objected, arguing the Township was specifically prohibited by state statute from taking land to preserve open space and prevent development.  Pennsylvania's Lands Act prohibits local government units from utilizing eminent domain to take land to preserve open space, but the Township Code allows local government to take property for recreational purposes. 

The property owner proffered evidence that the true purpose of the taking was to prevent development (in other words, to preserve open space), not for recreational purposes as claimed. The Township argued that it didn't matter what evidence the property owner produced because the "sole question is whether the Township could lawfully condemn for recreational purposes."  Slip op. at 7.  The Township also asserted that it didn't matter that the Lands Act prohibited local government from condemning land to preserve open space since the it took the property under the authority of the Township Code, not the Lands Act.   The trial court overruled the property owner's objections.

The Supreme Court held that the Township had the authority to condemn the property under the Township Code, despite the prohibitions on takings for open space in the Lands Act.  Local government can condemn for any legitimate purpose.  Slip op. at 8.  The court held that the prohibition means only that local government may not rely upon the Lands Act when it takes property, and thus does not prohibit the government from relying upon some other authority, namely the Township Code, which allows takings for "recreational" use. 

The court held that the record did not reflect that the "true purpose" the Township condemned the property was for recreational use. 

Relying on the maxim that the power of eminent domain must be strictly construed against the condemnor, the court held that courts must look for the government's real reasons and need not defer to government's "mere lip service," or its retroactive justifications. 

[I]n order to uphold the invocation of the power of eminent domain, this Court must find that the recreational purpose was real and fundamental, not post-hoc or pre-textual.

Slip op. at 9-10.  [Note - my two home jurisdictions also construe eminent domain strictly against the condemnor.  See Marks v. Ackerman, 38 Haw. 53 (1951) (eminent domain statutes construed against the taker); City of Oakland v. Oakland Raiders, 220 Cal. Rptr. 153 (Cal. Ct. App. 1985) (eminent domain is the sovereign's "most awesome grant of power").] 

The court rejected the Township's attempt to use a preexisting recreation and open space plan that included the Stones' property to show that the taking was for recreational purposes.   Because the plan did not show any proposed recreational use related specifically to the property, the court rejected the attempt to use Kelo's "carefully considered plan" as a panacea to actually thinking about what property is being taken.

One of the more interesting parts of the court's opinion begins on page 12 of the slip opinion, where the court discusses what is a purely private taking:

The trial court erred in deciding that these proffered options were proper and that they support an assertion that the true purpose of the taking was recreational.  The first option mentioned, to allow Mr. Stone to continue to farm the land, would invalidate the taking because of the Fifth Amendment requirement that a condemnation serve a public purpose.  To condemn land so that Mr. Stone could commercially farm it, thereby reaping a profit from land owned and maintained by the Township, serves a purely private, and thus, unconstitutional interest.

Slip op. at 12.  This holding directly contradicts a recent New York appeals court ruling, Aspen Creek Estates, Ltd. v. Town of Brookhaven, 2007 NY Slip Op 09583 (Dec. 4, 2007) which I summarized here.  In that case, the court approved a taking of private property to preserve it as farmland.  The court's majority upheld the taking as a public use even though the property owner asserted that the land would eventually be leased or sold to another private owner.

Finally, the Stone court summarized when a Pennsylvania court will uphold a taking that is asserted to be in accordance with a comprehensive eminent domain plan:

[P]recedent demontrates that condemnations have been consistently upheld when the taking is orchestrated according to a carefully developed plan which effectuates the stated purpose.  Anything less would make an empty shell of our public use requirements.  It cannot be sufficient to merely wave the proper statutory language like a scepter under the nose of the property owner and demand that he forfeit his land for the sake of the public.  Rather, there must be some substantial and rational proof by way of a intelligent plan that demonstrates informed judgment to prove that an authorized public purpose is the true goal of the taking.

Slip op. at 13-14.  The concurring opinions are posted here, and here, and the single dissent is here.