The Kelo
Controversy
Since the Kelo case, the issue of whether the government can condemn one
person’s property on behalf of a third-party has been a hot-button legal issue.
See Kelo
v. City of New London, 545 U.S. 469 (2005). Proponents of the Kelo decision believe that enlarging the eminent power to allow the
government to take property and convey that property to a third-party empowers
the government to promote the general welfare and development of society. Opponents of the Kelo decision believe that this sort of government taking tramples
on individual liberty and functions as a Bizarro-Robin Hood – taking from the
poor and giving to the rich.
Utah’s Third-Party Eminent Domain Laws
Several
states, including Utah, have weighed in on the issues posed by Kelo with new statutes and case law. Utah
passed a new eminent domain bill with specific requirements that must be
followed to exercise eminent domain powers.
See Utah Code §78B-6-501 et seq. Also, Utah courts have come down on the side
of requiring the government to maintain control of any property condemned
through eminent domain.
There are two Utah cases that show how
much control must be maintained by the condemning entity. In the first case, Provo City wanted to build
a road across unincorporated land, but this land was not within Provo (Note: eminent
domain powers in regards to condemning boundaries outside of a city’s limits have
subsequently been enlarged). After the courts determined that Provo City could
not use eminent domain to seize this land, Provo City entered into a deal with
Utah County by which Utah County would condemn the property, Provo City would pay
for the road’s construction, and Utah County would own the property. The landowner challenged the condemnation
with an argument that Utah County cannot use eminent domain on behalf of Provo
City. The Utah Supreme Court ruled that
neither Utah County nor Provo City acted outside of its authority and that the
land was legitimately taken for the public use of building a road. The fact
that Provo City wanted and paid for the road was of no importance, so long as Utah
County took and maintained control over the condemned property. Utah
County v. Ivie, 2006 UT 33 (Utah 2006).
In the second case, Salt Lake City needed
to acquire a piece of land owned by Rocky Mountain Power. Salt Lake City was concerned about whether it
could condemn a piece of property already set aside for public use, so Salt
Lake City entered into a deal in which it would condemn another piece of
property and trade the new property to Rocky Mountain Power in exchange for the
piece of land currently owned by Rocky Mountain Power. In this case, the Utah Supreme Court
determined that Salt Lake City was acting outside of its eminent domain
powers. Salt Lake City would not
directly own the condemned property, develop the condemned property, and directly
have a public use for the property (even though Rocky Mountain Power would provide
a public use for the property). In order
to exercise eminent domain authority, the condemning government must actually
be the party taking and controlling the seized property. See Salt Lake City Corp. v. Evans Development
Group, LLC, 2016 UT 15
(Utah 2016).
Potential for
Future Eminent Domain Issues
While the
recent Evans Development Group
decision curtails the ability of the government to take property on behalf of a
third-party, the door is still open for creative government officials to try to
structure deals within the guidance provided by the court. Though the Kelo decision favors broad government powers under the United State
Constitution, Utah’s eminent domain statutes still raise substantial hurdles to
overcome before the government can condemn property for a third-party.
For more specific
information about this particular subject, please call my office at
801-691-7770 for a free consultation or see the following web pages:
3.
Land Use and Zoning: http://whitingjardine.com/practice_areas.php?part=zoning
5.
Quiet Title: http://whitingjardine.com/practice_areas.php?part=quiet_title
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