Courts Begin Putting The Brakes On Takings

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.

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. In one such 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. The Illinois 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."

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