by Timothy Sandefur
There's a procedure in eminent domain cases called "quick take," by which the government seizes property immediately, and lets the legal issues be settled later. The idea is that eminent domain cases sometimes take so long to resolve that government can't wait; some projects are too urgent. So the government can deposit the amount that they estimate the property is worth into an account run by the court; then they take immediate possession of the property, and the owner can sue later over whether that amount is really "just compensation." In theory, the property owner can also argue that the government had no right to take his land, but in such cases, it's generally too late, because by the time the court gets around to hearing that question, the government's already done what it wants with the property.
In a case now before the Maryland Court of Appeals, the city of Baltimore used its quick take procedure to take property for private development. The law says that the city can do this if it supplies an affidavit explaining the urgent need for the property. But the city simply filed a boilerplate affidavit saying they needed the property, and giving no real urgent reason for it. The trial court said that was not enough, and ruled in favor of the property owner. (A very rare circumstance!)
Now the government has appealed to Maryland's highest court, arguing that the law should just allow them to do a "quick take" as long as they file an affidavit, no matter what that affidavit says.
I filed a brief in this case on Friday, on behalf of the Pacific Legal Foundation, arguing that quick take procedures were designed for emergencies only, and that exploiting them for non-emergencies and development projects unfairly burdens a property owner's right to a day in court. You can read that brief here. It's based in large part on Prof. Nicole Garnett's recent article The Public Use Question As A Takings Problem, which contains an excellent section on the abuse of "quick take" procedures. In fact, from what I can tell, Prof. Garnett's article is the only one to discuss this issue.