Nasty NIMBYs

Nasty NIMBYs

Landfill and wastewater siting and the effects of pretextual takings.

In recent years, eminent domain and condemnation proceedings have emerged as prominent features on the land development landscape.

Consequently, businesses and communities have acquired a more sophisticated understanding of the legal, financial, procedural and logistical issues surrounding this legislative instrument. Partly as a result of that increased knowledge and experience, these laws have begun to be applied in new, more ambiguous and perhaps even dubious circumstances.

While eminent domain actions have traditionally been used by government entities to facilitate infrastructure improvements, it is becoming more common for governmental bodies to work in conjunction with privately owned companies or community leaders to seize property for reasons that stretch the boundaries of what might be considered appropriate. This use — some might argue misuse — of eminent domain and condemnation statutes is known as a “pretextual taking.” Pretextual takings are eminent domain proceedings that claim a valid public use or purpose but, in actuality, are takings with the sole purpose of removing or precluding another use of the property.

Someone Else’s Backyard

For landfill and wastewater professionals, pretextual takings are an increasingly common and frustrating obstacle to legitimate expansion and site construction. As communities attempt to use pretextual takings to prevent what they all-too-frequently view as an undesirable presence in their immediate proximity, the potential conflicts, expenses and uncertainties surrounding these issues continues to grow.

The siting of waste disposal properties has always been a challenge. Few terms elicit more negative community reactions than “landfill” or “sewage lagoon.” They stir up a response that epitomizes the “not in my backyard” attitude.

While these facilities are essential to the sanitation needs of every region, the “anywhere but here” mentality frequently leads to contentious debates about exactly where they will be sited.

Largely as a result of these debates, the siting process for a waste disposal property is arduous and expensive. The lengthy process and excruciating scrutiny of land use permit detail is typically driven by a community’s hope that the protracted process will either deplete the budget of the siting company or cause the company to look elsewhere (someone else’s backyard) for a suitable site. Unfortunately for the waste disposal industry, desperate communities are increasingly prone to look for another way out when these traditional methods of “pay and delay” do not halt the effort to locate the waste facility. Today, many communities are using pretextual takings to provide them with a way out.

Desperate Measures

The concept of pretextual takings originally arose as a tool to help raise tax revenues and drive economic development. Communities, working in conjunction with private developers, would allege blight to acquire lawfully operating properties that were unwilling to sell voluntarily and cheaply to the new developers. Concurrently, the community would commission a study that would find a property “blighted,” a finding that would give the community the pretext and power to acquire the property and transfer it to the new developer.

An added benefit of this tactic was that the property could subsequently be acquired below market value once the “blighted” stigma was attached to it. The same concept of using condemnation and eminent domain statutes as leverage to achieve a desired community goal is at play with landfill and wastewater sitings.

The concept is fairly straightforward: Once other delaying tactics have failed and it appears that a waste company will meet all siting requirements for a property, communities come forward to allege a public use for the proposed site. Nothing can be more frustrating (or costly) than to have a community claim that the precise site selected for the waste use just happens to be the area that the community has targeted for a public park, green space holding or nature preserve.

In some cases, a community may be so intent on excluding waste-related use that it purchases the property at its own expense to head off the supposedly offensive use.

Taking Action

What recourse do industry professionals have when faced with this set of circumstances? The first step is to identify a pretextual taking, an exercise that is not particularly difficult. Focus on the following key indicators:

• Was the proposed public use established after the siting process commenced?
• Is there a proposed actual physical use of the property rather than a claimed green space, open space or parkland, which requires no additional financial commitment by the community?

If the answer to either of these questions is “yes,” the issue is fairly clear. Unfortunately, identifying a pretextual taking that is aimed at excluding an otherwise lawful use is only part of the battle.

While pretextual takings are, by almost any objective standard, unscrupulous, there is a big difference between “questionable” and “illegal,” and bridging that gap can require meeting a legal standard that is sometimes difficult to establish.

Pretextual takings have generally been found unconstitutional in the abstract, but in practice some jurisdictions indirectly allow them. Under many statutory frameworks, so long as a proposed public use is in fact an actual public use, the taking by eminent domain will be allowed.

Generally, short of proving in an indisputable manner that the community is perpetrating a fraud or abusing discretion, the community will be given great deference in moving forward with its proposed public use projects.

Because of the many legal hurdles and complexities surrounding these issues, knowledgeable and experienced legal representation is critical. If a pretextual taking that jeopardizes the siting process for a waste facility is suspected, competent counsel familiar with eminent domain taking challenges should be consulted for the proper manner in which to challenge the taking and preserve the proposed use.

Ultimately, the power of these laws is based on government-backed authority, and that authority is not absolute. And, while the legal framework can sometimes make proving a pretextual taking a challenge, the significant investment that waste disposal professionals and siting companies make in identifying and pursuing promising locations means that this is often a battle well worth fighting.

Alan Ackerman and Darius Dynkowski are partners with Bloomfield Hills, Mich.-based Ackerman Ackerman & Dynkowski. Alan can be reached at [email protected] and Darius can be reached at [email protected] Visit the website at or blog at for more information.

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