The Town of Johnston acted beyond its legal authority in using the town's charter to take a property by eminent domain, a federal judge ruled on July 28.
Federal District Judge Melissa DuBose ruled against the town, which tried to take the 31-acre property from a group trying to turn the land off George Waterman Road into income-restricted apartments.
The ruling was just on one of the six counts against the town in a federal lawsuit originally filed in March 2025. Now that the judge has found that the taking under the aegis of the town's charter wasn't constitutional, the rest of the claims in the lawsuit will move forward, as will discovery and depositions.
The case is one where Mayor Joseph Polisena Jr. announced he would "use all the power of government that I have to stop it," referring to the 252 proposed apartments, and shortly thereafter announced plans to take the 30 acres by eminent domain for a new public safety and town hall complex. City officials transferred the title to the property during a hearing without the landowners present. Subsequently, the landowners were granted an injunction, preventing the transfer of the land.
The lawsuit complaint alleges that the town is trying to conduct a "sham taking" of the property to stop the owners from building the income-restricted housing complex.
State and local governments can exercise the right of eminent domain by taking property from a landowner and giving them fair market value in return, but it's a power given to local governments by the state government.
At issue in DuBose's July 28 decision was Johnston's ability to take land under its town charter.
According to the town's charter, approved by the General Assembly, the town "may acquire property within or without its corporate limits for town purposes ... by purchase, lease, gift, devise or condemnation within the town for public use."
Stating that a local government can condemn land is not enough for it to take it, per U.S. Supreme Court and Rhode Island Supreme Court precedent, DuBose wrote. For the charter provision for eminent domain to pass constitutional muster, it would need to designate a source of funding or pledge of credit and create an "enforcement mechanism" for the person having their land taken to apply for their money.
DuBose's decision is not the end of the road for the potential eminent domain efforts by Johnston, or the lawsuit.
While the town cannot use its charter to seize the land and prevent the apartment complex from being built, there are other state laws it could try to use to take the land, including using the Rhode Island Municipal Public Buildings Authority Law, which explicitly provides a way for towns to take land to build municipal infrastructure.
SLCS Realty is working toward getting approval for the apartment complex proposal, Pacific Legal Foundation attorney Kady Valois said. The Pacific Legal Foundation is representing the land owners, along with local lawyers.
DuBose restarted the discovery process and the remaining five claims in the lawsuit will move forward. Adjudication of the remaining claims requires both sides to finish discovery and depositions.
The end goal is potential damages, attorney fees and, most importantly, a declaration and precedent that local government "cannot operate in this way," Valois said.
At issue is a decision in the Second Circuit Court of Appeals that municipalities can take land as long as it's for a "public use" and the person who has their land taken gets "just compensation." The goal is to create different precedent in the First Circuit, where Rhode Island is.
In the Second Circuit, "as long as it's for public use, the reason for taking doesn't matter," Valois said. "We think that is incorrect."
The goal is to set precedent in the First Circuit that goes beyond just taking land for a public use, and that "government should not be able to disguise its motives and get away with it."
"The reason behind use matters, it still has to be a public use, and you can't lie, can't mislead on why you're taking it," Valois said. "Land taking is an incredible power, it's called the 'called 'most awesome,' for forcibly taking someone's property from out from under them. Intent matters is what it comes down to."
This article originally appeared on The Providence Journal: Johnston faces setback in fight to seize 31-acre property by eminent domain