by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

EMINENT DOMAIN; CONDEMNATION AUTHORITY; PRIVATE USE: It is not a "public use," sufficient to support condemnation authority, for the state to acquire property for space in a visitor's center to be occupied by a private Chamber of Commerce. City of Bozeman v. Vaniman, 898 P.2d 1208 (Mont. 1995).

State Highway Department brought condemnation action to acquire property for a highway adjacent visitor's complex including a rest stop and visitor center in which the Chamber of Commerce, a private corporation, intended to occupy space. Condemnee objected that the acquisition was not being carried out for a "public purpose" in accordance with the Montana Constitution.

In analyzing when a private use is appropriate within an eminent domain taking, the courts consider a three-tiered standard: (1) whether the public use will create an incidental benefit to private individuals, (2) the overall use of the condemnor and (3) the significance of the private use. In this case, private property was taken for The court concluded that the Chamber of Commerce's presence was inappropriate within the public project in light of the facts that the Chamber of Commerce's offices were not incidental to or a necessary derivative of the project (as a visitor's center), the use of the condemned land was not that of the State if the Chamber of Commerce occupied a major portion of the complex, and the Chamber of Commerce's planned use of 40% of the complex would not have been insignificant.

In another part of the case, the court held that the exclusion of the Chamber of Commerce from the project did not render the entire condemnation invalid or require a limit of taking since the same amount of land had to be taken regardless of the presence of the Chamber of Commerce's offices, the eminent domain complaint and order of possession did not mention the Chamber of Commerce's proposed use of the project and the plans including the Chamber of Commerce's offices were only preliminary to the project.

Comment: The opinion is very brief, and appears to be based upon the issue of condemnation power under the state constitution, rather than substantive due process considerations. In other words, under the U.S. Constitution, this condemnation could have proceeded, probably, if the state, consistent with its own constition, had determined that the Chamber of Commerce facilities were an appropriate public purpose.

Of course, in many Southern and Midwestern states, "redevelopment" eminent domain proceedings are very common. Most of them, however, proceed under recent state constitutional proceedings permitting condemnation to clear up "blight." There probably isn't too much of that in Montana.

The "no private benefit" doctrine in many of these state Constitions comes from the bitter experience new states had with railroad wheeler-dealers. Often, as a price for running a railroad through a town, the railroaders exacted a high tribute. In some cases, they put the money in their carpetbags and disappeared with no railroad built. Made the locals kind of upset. This made for very restrictive public purpose concepts in the state Constitutions.

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