Eminent Domain Actions Targeting First Amendment Land Uses

Abstract

This Article explores constitutional and statutory limitations on land use regulations where First Amendment rights are implicated. The government’s eminent domain power can weaken the protection due undesirable land uses under the First Amendment. Professor Saxer advocates that courts should distinguish between the government exercising eminent domain and the government using typical land use regulation and should impose stricter constitutional limitations on the eminent domain power.

In particular, this Article focuses on how courts have dealt with eminent domain actions targeting adult business and religious land uses. Although these two types of uses are strange bedfellows, they are the land uses that typically involve First Amendment rights and that tend to generate emotional responses from the community leading to content-based regulation. Issues examined in this Article include: eminent domain actions against religious land uses protected under state and federal constitutions, state Religious Freedom Restorations Act (RFRA) statutes, and the Religious Land Use and Institutionalized Persons Act (RLUIPA).; government motivations for targeting protected land uses; and special valuation considerations for just compensation determinations.

Keywords: land use fegulations, eminent domain, First Amendment, adult business, religious land use, church property, Religious Freedom Restorations Act, RFRA, Religious Land Use and Institutionalized Persons Act, RLUIPA

JEL Classification: K11, K29, K39, K49