The town of Johnston, Rhode Island is targeting property for condemnation in order to prevent the construction of an affordable housing project on the site. The Pacific Legal Foundation (a public interest law firm representing the property owners) in the case, has a helpful description of the facts [Note: PLF is also my wife's employer, though she has no involvement in this case and does not work on property rights issues]:
SCLS Realty, LLC and Sixty Three Johnston, LLC were formed by Salvatore Compagnone, Jr, a fourth-generation general contractor in Johnston, Rhode Island, whose family has a long history in the building trade dating back to Italy. After Salvatore's father passed away in early 2024, his family took the helm of development in the town with plans to carry on the building tradition and provide desperately needed, new affordable housing.
A 2023 Rhode Island law aimed at incentivizing private creation of affordable housing (housing that costs less than a third of a moderate- or low-income household's income) seemed to pave the way. This law allows more living units per acre than local rules usually permit and requires local governments to streamline the approval process with quicker and simpler permitting procedures.
SCLS and Sixty Three Johnston own just over 31 vacant acres of land in the Providence suburb of Johnston. The town of some 30,000 residents is just a few miles from the state capital, yet only 7% of its housing serves low- and moderate-income residents.
SCLS and Sixty Three Johnston's property was already zoned for dense apartment-style development. Sal Compagnone and his partner, Ralph Santoro, designed a 252-unit, five-building complex, and in October 2024, submitted a preliminary land-use application to the Town planning department, which set a December 3 hearing to review the plans. But Johnston's mayor, Joseph Polisena, Jr., had other ideas. On the same day as SCLS and Sixty Three Johnston's planning board hearing, he posted a letter on social media attacking the project. He claimed it would create "a trifecta of chaos" with increased traffic, drainage problems, and an overwhelmed school system. And although Rhode Island law specifically allows—indeed encourages—this type of housing development, the mayor accused the LLCs of trying to "force-feed" an unwanted project on the Town. His letter also fired out a clear threat: "If you insist on moving forward with the currently proposed project, I will use all the power of government that I have to stop it."
The mayor wasn't bluffing. On January 27, 2025, Polisena abruptly announced the Town would seize the LLCs' land by eminent domain. He claimed the Town needed the LLCs' property for a new municipal complex, despite zero evidence the Town had ever previously considered such an acquisition or that relocation of the Town's facilities nearly three miles away from their present central location to the edge of the town had ever been mentioned, much less planned. But the Town Council unanimously approved the taking the very next day.
PLF and the owners are challenging the use of eminent domain to take the property on the grounds that the condemnation here is not for a "public use," as required by the Fifth Amendment, and the Rhode Island state constitution.
In cases like Kelo v. City of New London, the Supreme Court has ruled (wrongly, in my view) that almost any potential benefit to the public qualifies as a "public use." Thus, in Kelo the Court upheld the condemnation of homes for purposes of promoting privately owned "economic development," even though the development plan in question was so badly flawed that it predictably fell through, and the condemned property ended up (for many years) being used only by a colony of feral cats.
But the Kelo majority also indicated that a taking can still be invalidated if the government tries to "take property under the mere pretext of a public purpose." This has led to much litigation over what counts as "pretextual" taking, with different state and federal courts reaching a wide range of conclusions.
In some ways, this case reminds me of last year's federal Second Circuit ruling in Brinkmann v. Town of Southold the "passive park" case which I discussed here. Both cases feature a bogus supposed "public use" that served as a thinly veiled cover for a NIMBY ("not in my backyard") effort to forestall a use that the authorities objected to (a hardware store in Brinkmann) and both differ from the typical "pretextual" taking case because the condemned property is slated for public ownership rather than a transfer to a private party. For reasons outlined in my post about Brinkmann, this makes it more difficult to argue that there is no public use here:
Pretextual takings doctrine is a mess generally. But I think it can legitimately be used to strike down a variety of takings for transfer to private parties; indeed, I believe most such takings are unconstitutional even aside from the pretextual motives, because I support the "narrow" view of "public use" under which the government may only take property for publicly owned facilities or private ones that have a legal duty to serve the entire public.
In most situations, the narrow view is satisfied when the government takes property for public ownership - even if the motive for the taking is unrelated to the potential benefits of the new use…. But this case is different from most takings for public ownership because the government isn't actually using the condemned property for anything….
This opens up the possibility there can be public ownership without public use. To be sure, there can sometimes be "use" even if the government doesn't build anything on the land it takes. For example, it could decide to use the property as a nature preserve. But there is no such use here, not even a "passive" one. The only goal is to block the Brinkmanns' plan to build a hardware store, not to use the land for any affirmative purpose.
Perhaps such blocking can still be a "use." But the issue is a difficult and murky one.
A divided Second Circuit ultimately decided the passive park did qualify as a public use, and the Supreme Court refused to hear the case. But I think this case may be a better one for the property rights side than Brinkmann was. A "passive park" can potentially be created simply by eliminating the previous use of the land, and then leaving it empty and open to the public. The "park" may not be very attractive. But at least people can take walks there, kids can play on it, and so on. By contrast, the Town of Johnston's supposed public use of building a municipal complex requires actively restructuring the property and building a new facility on it. That can't be accomplished if there is no viable plan to do it - as there appears not to be here.
In addition, even if the property owners ultimately lose under the federal Public Use Clause, they might be able to prevail under that of the Rhode Island state constitution. The state supreme court there has established tighter limits on public use than the US Supreme Court imposes under Kelo (see my discussion of relevant Rhode Island precedent in Chapter 7 of my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain).
This case potentially has a broader significance, in so far as it might empower local governments to use eminent domain as a NIMBY tool for blocking affordable housing projects, thereby exacerbating the national housing crisis. The usual NIMBY tool is exclusionary zoning. Unlike eminent domain, it doesn't require the government to pay owners whose rights it restricts! In this case, the local government couldn't resort to zoning, because such restrictions had been preempted by state law. Thus, they tried eminent domain instead.
Other local governments could also potentially use eminent domain as a tool to circumvent state laws restricting exclusionary zoning. As Josh Braver and I argue in our article "The Constitutional Case Against Exclusionary Zoning," there is a limit to such abuse of eminent domain, because local governments can't afford to impose sweeping building restrictions if they have to pay every affected owner to do so. But eminent domain could potentially be a viable NIMBY tool in cases where state law only partially overrides local zoning restrictions, as is the case with the 2023 Rhode Island state law here (which creates only a limited override for affordable housing projects). That potentially enables local governments like Johnston to use condemnation to keep out those projects without breaking the bank.
The lesson here is that statewide reform should comprehensively ban exclusionary zoning, not just create limited workarounds. In addition, Braver and I argue that most exclusionary zoning rules are takings requiring compensation under the federal constitution. If courts adopt that approach, local governments would find it much more difficult to use eminent domain for NIMBY purposes, because doing so would require taking (and paying compensation for) a much wider range of properties.
Unless and until more states adopt more comprehensive zoning reform or federal courts adopt the Braver-Somin approach to takings, public use litigation could potentially help limit eminent domain NIMBYism - if the plaintiffs win this Rhode Island case. For that reason, among others this case is definitely worth keeping an eye on for anyone interested in property rights, land use, or housing policy.
Recently, the Town tried to secretly take over the property and lock out the owners even before the eminent domain process was officially completed. PLF attorney Robert Thomas (one of the nation's leading eminent domain lawyers), said: "In 40 years, I've seen some pretty outrageous exercises of eminent domain powers. Never anything like this." For what it's worth, I have been studying eminent domain issues for over twenty years, and I've never seen anything quite like this attempt at a stealth seizure either. Fortunately, PLF and the owners managed to get the court to issue a temporary restraining order to block the Town from occupying the land at least until the court decides whether to issue a preliminary injunction against the condemnation.
The case continues, and I will cover the court's ruling when it comes down.
The post Lawsuit Challenges Use of Eminent Domain as NIMBY Tool to Block Housing Project appeared first on Reason.com.
