Ever since the Kelo case came down in 2005 there has been much talk about pretextual takings, but no one had ever sighted this rara avis. Until now. The Pennsylvania Supreme Court just shot one down in Middletown Township v. Lands of Stone, 939 A.2d 3311 (Pa. 2007).
The township set out to take Stone’s 175-acre farm ostensibly for recreation and open space. But the problem was that the actual purpose of the taking was to prevent the farm’s owner from developing it or selling it to a developer. The township had the chutzpa to take the position that after the taking, the [former] farmer-owner of the subject property could continue farming it, except that now it would not be his.
The court went through a lengthy analysis of the pertinent Pennsylvania statutes, and in the end concluded that the statutory scheme permitted the township to take property for recreational uses. But in this case the record showed nothing by way of township planning for such a use. To meet the recreational use requirement, said the court, it is not sufficient that some part of the record supports such uses. The required trial court finding has to be that the proposed recreational use is “real and fundamental, not post-hoc or pretextual.” But the township’s plans identified farms (including this one) only as “potential preservation” and not recreation.
So there you have it, folks. Sometimes the law works the way it is supposed to, even in the field of eminent domain.