Eminent domain is a powerful tool at the disposal of local, state and federal governments.  The Fifth Amendment to the U.S. Constitution imposes two conditions on this sovereign power:  the taking must be for “public use,” and the condemner must pay “just compensation” to the property owner.  There are minimal guardrails in place to police potential misuse of the eminent domain power in the courts.  The U.S. Supreme Court equates “public use” with “public purpose” and applies a deferential standard of review to a condemner’s determination that a taking serves a public purpose.  Nonetheless, the Court in Kelo v. City of New London asserted that courts should inquire whether a condemnation’s purported public purpose is pretext to confer a purely private benefit and, if so, that taking would be unconstitutional.

However, the Supreme Court has not clarified whether courts should consider a condemner’s pretextual motive if the taking otherwise satisfies a purely public use, such as a park.  Some lower courts review a condemner’s motivation underlying the taking.  They ask whether the actual goal was to prevent unwanted use of land that the condemner was unwilling or unable to stop by other means.  If so, those courts find that the taking fails to satisfy the Public Use Clause.  Other lower courts hold that it is enough that the property provide a public amenity, despite the condemner’s asserted pretextual reason for the condemnation.

This Note argues that courts should review plausible claims of pretext, even for traditional public use takings, under a “rational basis plus” standard of review that follows a two-step analysis.  Step one requires courts to decide whether there is evidence that the condemnation came after a proposed, unwanted commercial use.  Step two requires courts to consider whether the asserted public purpose is simply pretextual for thwarting the alleged proposed use under a rational basis plus standard of review.  This review will prevent condemners from using eminent domain in bad faith to take private property for a public amenity, thereby avoiding zoning and other land use processes.