The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. RE-00-032
SkS- KEN $/2 [200
GARY A. CRAIG and
THERESA G. CRAIG,
Plaintiffs
Vv. DECISION ON MOTION
FOR SUMMARY JUDGMENT
KENNEBEC REGIONAL
DEVELOPMENT AUTHORITY,
Defendant
This matter came before the court on the plaintiffs’ motion for partial
summary judgment as to counts I and II of their five-count complaint. The
defendant has purported to take the plaintiffs' real property by eminent domain,
and the plaintiffs complain that this taking violates Article I, § 21, of the Maine
Constitution in that the taking was not for a public use (count J) and that there was
no public exigency (count II).
Background
For many years there has been a perceived need to increase economic
development in the region comprised of communities in Kennebec and Somerset
counties. In 1998, the State Department of Economic and Community Development
announced it was soliciting applications for a $1 million federal grant for
construction of a "regional super park." An application for the region in question
was supported by various organizations in the Kennebec region which formed a
group called "People of the Kennebec.” Although several sites for the proposed
regional super park were investigated, the applicants finally settled on a location in
Oakland comprised of parcels owned by the Town, Union Water Power Company,
and the plaintiffs. The federal grant authority required a certain minimum acreage,
which could be accomplished by combining the parcels. The applicants, now named
FirstPark, were awarded the grant.
The enabling legislation for the regional authority was enacted by the
Legislature as P. & S.L. 1998, ch. 79, “An Act to Create the Kennebec Regional
Development Authority". (KRDA). The KRDA is a conglomeration of
municipalities in the region which would undertake the actual construction of the
business park. KRDA possesses the power enjoyed by its constituent municipal
members including the power of eminent domain. KRDA's goal is to build the
infrastructure for the project and to market the sites within the park to various
targeted private businesses. Once the site is complete, the lots will be sold to these
businesses. KRDA solicited the plaintiff Gary and Theresa Craig to sell their parcel.
The Craigs refused the price offered, which was derived from an appraisal obtained
by KRDA. After a hearing on the matter was conducted by the KRDA's General
Assembly, the taking was approved and a Secretary's Certificate, Order of
Condemnation, and a check representing the purchase price of the property were
served on the Craigs. The Craigs then filed the present lawsuit and have moved for
summary judgment on counts I and II. No issue is raised in this motion as to the
amount paid for the property or the procedure by which the taking occurred. The
only issues are whether the taking was for "public use" and/or whether there was a
public exigency to support the taking.
Discussion
The taking of private property by governmental bodies in Maine is limited by
Article I, § 21, of the Maine Constitution, which reads: "Private property shall not be
taken for public uses without just compensation; nor unless the public exigencies
require it." Therefore, both requirements -- that the taking is for public use and is
required by public exigency -- must be present for the taking to be constitutional.
Finks v. Maine State Highway Commission, 328 A.2d 791 (Me. 1974). The motion
will be discussed separately as to each of the requirements below.
PuHic Use
The purpose of FirstPark and therefore the purpose of taking the plaintiffs’
property has been widely publicized and has been the subject of public debate and
referendum. As noted above, that purpose is to enhance regional economic
development through the acquisition of property to establish an industrial park and
subsequent sale of the individual sites to private concerns attracted to the park.
These are the material facts to which there is no dispute and count I is appropriate
for decision by summary judgment as a matter of law.
The question of what constitutes a “public use" for purposes of Article I, § 21,
is not new. The seminal case in the area is Brown v. Gerald, 100 Me. 351, 61 A. 785
(1905), in which the Law Court examined the exercise of a power company's
eminent domain powers to erect a line of poles and wires across private property to
provide power to a manufacturing concern. The Court stated:
The term ‘public use' is difficult of exact definition, and most courts
have avoided giving one. Public benefit is, however, one of the
essential characteristics of a public use. There is no doubt that the
conception of public benefit and public utility and the general welfare
of the State, even indirectly promoted, has had much to do in
tempering the opinions of the courts. The term is a flexible one, and
necessarily has been of constant growth, as new public uses have
developed. And it has been said that what is a public use under
eminent domain statutes may depend somewhat upon the nature and
wants of the community for the time being. It is beyond question that
any instrumentality which tends to promote the manufacturing
industries of a state, to furnish labor for its mechanic, to create the need
of markets for its products, and to develop and utilize its natural
advantages, is of great public benefit.
Id. at 361. However, the Court also stated:
Besides it is held, and we think properly, that the term ‘public use’
cannot be construed to be the equivalent of general welfare or public
good. It must receive a more restricted definition. (Citations omitted).
Id. at 365. The Court also did an extensive comparison of holdings in other states
and concluded:
Taking the decided cases generally, we think that the weight of
authority does not sustain the doctrine that a public use such as
justified the taking of private property against the will of the owner,
may rest merely upon public benefit, or public interest, or greater public
utility.
Id. at 370.
Brown was followed by other "public use” cases including Crommett v. City
of Portland, 150 Me. 217, 107 A.2d 841 (1954). Crommett is notable for the fact that
the Law Court seemed to expand the definition of "public use” to include taking by
eminent domain for slum clearance. The court's theory was that the slum clearance
corrected conditions harmful to public health, safety, and welfare, a direct benefit
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and advantage to all people.
Approximately fifty years after Brown, the Justices of the Supreme Judicial
Court again addressed the "public use" issue in rendering their opinion with regard
to proposed legislation remarkably similar to the authorizing legislation for KDRA.
Opinion of the Justices, 152 Me. 440, 131 A.2d 904 (1957). The Legislature was
considering a bill designed to stimulate industrial development in the City of
Bangor by allowing the City to recreate an industrial park through the use of
eminent domain, if necessary. In opining on the constitutionality of this legislation,
the Justices stated:
The test of public use is not the advantage or great benefit to the public.
A ‘public use’ must be for the general public, or some portion of it,
who may have occasion to use it, not a use by or for particular
individuals. It is not necessary that all of the public shall have occasion
to use. It is necessary that everyone, if he has occasion, shall have the
right to use. Paine v. Savage, 126 Me. 121, 126.
The Act in violation of these principles seeks to have the City do for
private enterprise what private enterprise cannot be authorized to do
for itself.
Id. at 446-47. Later, the Justices stated:
The plan calls as we have seen for the acquisition of property against
the will of the owner if need be, with its placement in industrial use by
private enterprise.
In our opinion, the Act attempts what is forbidden by our fundamental
law, and is unconstitutional.
Id. at 448.
The 1957 Opinion of the Justices is not binding on this court in the sense of
stare decisis. Nevertheless, it is a very clear statement of the rationale the Court
would have used had the Bangor industrial park legislation been enacted and
subsequently challenged. As a result, it is clear that if the present case had been
presented to the court in 1957, the plaintiffs would have prevailed. However, as
noted in Brown, “public use" is a concept which is not static. New public uses may
become recognized due to changes in technology or other factors. For example,
yesterday's railway station has become today's airport and may become tomorrow's
space shuttle station, all public uses for which eminent domain would be
authorized. The question is whether constitutional law in Maine has evolved
sufficiently in the last forty-five years to be able to say that what was not a public use
in 1957 is a public use today. Confining the examination to Maine case law and
opinions, this court concludes that though “public use” must change with the
times, it has not changed enough to include use for regional industrial facility
developments such as FirstPark.
The defendants urge the court to expand its expand its review beyond our
borders to determine how the concept of "public use” should evolve. For example,
the United States Supreme Court upheld legislation in the State of Hawaii which
used the state's power of eminent domain to assist in the break-up of a land
oligopoly with sale of the property to private individuals (those individuals being
the people who were renting the land from the large landowner). Hawaii Housing
Authority v. Midkiff, 467 U.S. 229 (1982). In upholding the Hawaiian legislation, the
Supreme Court greatly expanded federal Fifth Amendment “public use" to the point
where it arguably would include any public benefit. Another example might be
Poletown Neighborhood Council v. City of Detroit, 304 N.W.2d 455 (Mich. 1981) in
which the Michigan Supreme Court upheld the use of eminent domain to acquire
property for a single specific industry (General Motors) to build an automobile
assembly plant. There are other examples from other states, but each state has the
right to set out and interpret constitutions which differ from each other and which
may be more but not less restrictive than their federal constitutional counterparts.
The Maine Constitution cannot afford our citizens less protection under the
eminent domain power than has the Federal Constitution as interpreted by the
Supreme Court; but it may give more protection. Given the very restrictive
interpretation of “public use" set forth above, even with its evolution as seen in
cases like Crommett, this court cannot say with any degree of certainty that our Law
Court today would have a sufficiently different view of the concept to make
FirstPark's taking constitutional. The court concludes the use in question is not
within the realm of “public use” at its current state of evolution and the plaintiffs
are entitled to judgment as a matter of law.
Public Exigencies
The 1957 Opinion of the Justices noted above also contained reference to the
requirement of public exigency. The Justices stated:
We are not unmindful that the public exigencies or need for use of
public monies for assistance in industrial development under the plan
here proposed is determined by the Legislature (or under the Act by the
city) and not by the Courts. The value of the plan or its economic or
social benefits, however, present no issues for judicial consideration.
We mention these factors that it may plainly appear that our opinion
does not touch the need or desirability of the plan, but solely the
constitutionality thereof. (Citations omitted).
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152 Me. 440, 445-46. The impact of this comment seems to be that although the
Legislature or other body exercising its power of eminent domain would always in
the first instance determine both public use and public exigency, only the public use
criteria may be reviewed by the courts. In any event, in light of the court's decision
on count I of the complaint, it is not necessary to consider count II.
For the reasons stated above, the entry will be:
(1) Motion for summary judgment GRANTED for the
plaintiffs as to count I of the complaint. The Kennebec Regional
Development Authority Order of Condemnation dated June 8, 2000, is
VACATED.
(2) —‘ Plaintiffs‘ motion for summary judgment as to count II is
DENIED, but also rendered moot as a result of the court's ruling on
count I.
Dated: April_4 _, 2001 din
5. Kirk Studstrup ,
Justice, Superior Court
Date Filed 7/12/00 Kennebec Docket No. __ REQO-32
County
Action Eminent Domain
Gary A. & Teresa G. Craig VS. Kennebec Regional Development Authority
Plaintiff's Attorney
John A. Ciraldo, Esq.
Aaron D. Julien, Esq.
One Canal Plaza
P.O. Box 426
Portland, Maine 04112-0426
Defendant’s Attorney
-Alfred Frawley, Esq.
Joel Thomspon, Esq.
PO Box 9546
Portland Maine 04112
Date of
Entry
7/12/00 Complaint, Petition for Declaratory Judgment and Request for Injunctive
and Other Relief, filed. s/Ciraldo, Esq.
Case File Notice mailed to atty.
Motion to Specify Future Course of Proceedings and Incorporated Memorandum
of Law, filed. s/Ciraldo, Esq.
Proposed Order, ftled.
7/14/00 Notice of Lis Pendens, filed. s/Ciraldo, Esq. (attached exhibit )
07-24-00 Original Summons with service made on Janice Porter, Town Clerk, Town
of Oakland on July 18, 2000, filed,
07-24-00 Original Summons with service made on Craig Nelson, Regional
Development Authority, on July 14, 2000, filed.
8/3/00 ‘Letter from Atty. Thompson advising that the parties have agreed that the
Defendant will be filing its response to the complaint on or before 8/14/00
8/14/00 Answer of Defendant Kennebec Regional Development Authority, filed.
Response of Defendant to Plaintiff's Motion to Specify Future Course of
Proceedings and Request for Conference, filed. s/Frawley, Esq.
8/14/00 Notice of setting of conference on 9/7/00 at 8:30 a.m. sent to attys
of record.
8/25/00 SCHEDULING ORDER, Studstrup, J.
"Scheduling Order filed. Discovery deadline is April 25, 2001."
Copies mailed to attys of record.
9/7/00 Conference in chambers, Hon.Kirk Studstrup, Presiding.
Attorney Ciraldo to prepare proposed order for court.
9/22/00 Proposed Scheduling Order, filed.