More Eminent Domain

Below I noted the US Supreme Court's recent decision holding that a city can take away a private citizen's land and give it to a second private citizen so the second citizen can make money with it. In the Great Falls Tribune's article about the decision, they said that such action is prohibited by statute unless the land to be taken (stolen) by the government is "blighted." I promised to research the issue.

Ok, bear with me here. First, I am not an expert on eminent domain, and I do not have time to become one. I have reviewed what I believe to be the applicable statutes and offer the following as a basic, or superficial, analysis of Montana statutory law.

Let's start at the beginning. I am pretty sure that what the Tribune was referring to is Montana's Urban Renewal Law, MCA § 7-15-4201, et. seq. MCA § 7-15-4206, provides that a "blighted area" is, among other things, an area that "substantially impairs or arrests the sound growth of the city or its environs" due to " inadequate provision for ... open spaces as determined by competent appraisers ..., inappropriate or mixed uses of land or buildings, ... age obsolescence of buildings or improvements, whether residential or nonresidential, ... deterioration of site, [or] diversity of ownership." As you can see, there are plenty of subjective factors upon which our local government could hang their figurative hats if they want to seize land. Once the local government finds "blight," they can exercise their power of eminent domain to eliminate it.

One of the ways they can eliminate blight is through "redevelopment," including "making the land available for development ... by private enterprise." (Side note: When the City is going to seize your land for redevelopment, and they are trying to figure out how much to pay you, you are not entitled to the increased value of your property that results from the fact that it is in the middle of a commercial development. Nice!)

So, ok, I'm with the Tribune so far. But I wonder if they really looked at the law. Because I don't think our local government is as constrained as the Tribune thinks they are. Let's come at this from a slightly different angle. Let's assume Mayor Gray and Manager Lawton want your house, but they don't want to fuss with all of that urban renewal and blight garbage. They just want a developer to put up a new office building. Can they? Even without blight? Let's see.

MCA § 7-1-4124 provides that a municipality has the power to "acquire by eminent domain, as provided in Title 70, chapter 30, any interest in property for a public use authorized by law." Well, let's see what Title 70 has to say about this.

MCA § 70-30-102, provides that "the right of eminent domain may be exercised for ... all public uses authorized by the government of the United States." Hmmm. Ok. Now, didn't the Supreme Court's recent decision broaden the definition to provide that public use includes those projects with a "public purpose" such as increased tax revenues, more jobs, etc.? Isn't the US Supreme Court part of the government of the United States? By gosh, I think it is.

Stay with me here. So, the "government of the United States" has authorized eminent domain for a "public purpose" such as increased tax revenue. It has held that such a public purpose is, in fact, a public use. So, we know that "eminent domain may be exercised for ... all public uses authorized by" the US Government, and that this is, therefore, a public use authorized by law. Therefore, it follows that a municipality can exericise its right of eminent domain to increase tax revenue and...voila...no finding of blight.

So, rich man wants to build a $1,000,000.00 home on the lot where your $100,000.00 home sits. And, guess what. That will increase tax revenues, won't it?

A stretch? Maybe. But definitely scary. When we go to the polls, do we contemplate that these City Commissioners will have that kind of power? Should they?