In Mayor of Baltimore v. Valsamaki an important decision issued yesterday, the Maryland Court of Appeals (that state's supreme court), ruled that cities can only condemn property through "quick take" procedures if they prove that there is an "immediate necessity" for doing so.

As Tim Sandefur of the Pacific Legal Foundation explains in his post on the case, "quick take" procedures essentially enable the government to take your property first and ask questions later:

"Quick take" is a procedure that allows government to take immediate possession of property without going through the usual procedure in an eminent domain case. They take your property and then later deal with whether they had the right to do so. As PLF argued [in an amicus brief]—and the court agreed—this unfairly means that a property owner could very well win his case only to find that his property has been destroyed in the meantime! This, the court recognized, is terribly unfair."

The decision is important because "quick take" condemnations often enable government to get away with legally dubious condemnations. Once whatever buildings originally existed on the property are destroyed, the owner has little incentive to continue to pay the costs of litigating the case instead of settling for the "fair market value" compensation provided by the government.

Valsamaki is based on state statutory law rather than the Maryland state Constitution, so it can potentially be reversed by the state legislature. The relevant law (as quoted in the decision) permits quick take condemnations only if the government has filed "a Petition under oath stating that it is necessary for the City to have immediate possession of, or immediate title to and possession of, said property, andthe reasons therefore," and "[i]f it appears from a Petition for Immediate Possession, with or without supporting affidavits or sworn testimony, that the public interest requires the City to have immediate possession of said property." Md. Code Public Local Laws of Baltimore City, Section 21-16. As the Court's opinion shows this language, combined with standard canons of interpretation provides strong justification for placing the burden of proof on the government rather than the property owner.

This is a strictly limited ruling. In addition to being based on statutory rather than constitutional law, it does not constrain the purposes for which government can condemn property, but merely requires it to prove that there is an "immediate necessity" for circumventing the usual procedural rules for takings (which include allowing the owner to challenge in court the government's claim that the taking is for a legitimate "public purpose" as required by the state constitution).

Maryland courts define "public purpose" extremely broadly, having upheld the condemnation of property for "economic development" purposes in a 1975 decision, Prince George's County v. Collington Crossroads, 339 A.2d 278, 287 (Md. 1975). This case is, of course, Maryland's state constitutional equivalent of Kelo v. City of New London, which held that takings for economic development are permissible under the federal Constitution. As I have explained in numerous articles (e.g. - here), such condemnations provide tremendous scope for abuse, and rarely if ever succeed in fostering additional development that is worth its costs and is greater than what would have occurred through ordinary market transactions. Since Kelo, Maryland is one of fourteen states that have failed to enact any reform legislation at all, despite (or perhaps because of) the fact that the state is notorious for its dubious condemnations. In a forthcoming paper that I hope to post soon on SSRN, I include tentative data suggesting that Maryland makes greater use of condemnations that transfer property from one private owner to another then all but three or four other states. There is, therefore, still much work to be done to protect property rights in Maryland. But Valsamaki is a step in the right direction, though it remains to be seen whether the Maryland legislature will allow the decision to stand.