South Portland Assoc. v. City of South Portland

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 29
Docket:	Cum-99-483
Submitted
on Briefs:	January 14, 2000
Decided:	February 18, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA,  ALEXANDER, and CALKINS, JJ.

SOUTH PORTLAND ASSOCIATES

v.

CITY OF SOUTH PORTLAND

ALEXANDER, J.

	[¶1]  South Portland Associates (SPA) appeals from a summary
judgment entered in the Superior Court (Cumberland County, Cole, J.)
finding that the City of South Portland owns in fee simple absolute a parcel
of land that it had taken from SPA by eminent domain in 1968, and that SPA
did not have a right to repurchase the land.  Because the City did not use the
land taken for its described purpose, SPA contends that it was error for the
trial court to conclude that SPA was not entitled by statute to repurchase the
land at the price paid to it by the City in 1968.  We affirm the judgment.
	[¶2]  The facts of this case are not in dispute.{1}  In 1968, the City took
by eminent domain the parcel of land that is the subject of this dispute.  The
City's stated purpose for taking the property was to build a west-end fire
station.  The City paid SPA $7300, the fair market value of the property in
1968.  Through the years that followed, SPA questioned the City on
numerous occasions as to its intentions to construct a fire station on the
property.
	[¶3]  In June 1995, the City determined that construction of a west-
end fire station on the property was not feasible.  After making this
determination, the City decided to sell the property.  SPA advised the City
that, if the City intended to sell the property, SPA wanted to repurchase it
for $7300, the sum SPA was paid in 1968.  The City offered to sell the
property back to SPA, but for its current fair market value of around
$250,000.  Although the parties attempted to negotiate a fair price for the
property, they were unable to reach an agreement, and SPA filed this
declaratory judgment action.
	[¶4]  The trial court based its summary judgment on its conclusion
that 30 M.R.S.A. § 4001 (1965) (repealed 1988){2} granted municipalities a
fee simple absolute in properties acquired by eminent domain which was
not subject to any reversionary interest in the former owner if the
municipality failed to use the condemned property for the described
purpose.  Many jurisdictions recognize a general rule that when land has
been acquired in fee simple absolute by eminent domain, the former
landowner retains no rights in the land, and the public use may be
abandoned or the land may be devoted to a different use, without any
impairment of the estate acquired or reversion to the former owner.  See 3
Julius L. Sackman et al., Nichols On Eminent Domain § 9.07[7][f] (3rd ed.
1999); see also, e.g., Mainer v. Canal Auth. of State, 467 So. 2d 989, 991 (Fla.
1985); Board of Educ. of Unified Sch. Dist. 512 v. Vic Regnier Builders, Inc.,
648 P.2d 1143, 1147 (Kan. 1982).
	[¶5]  SPA does not dispute the fact that the City acquired a fee simple
interest in the property in 1968.  SPA asserts that it possesses a statutory
right to a reconveyance of the property based on the last sentence of section
4001, which states that, "[l]and taken for the purposes described shall not
be used for purposes other than those for which originally taken."  30
M.R.S.A. § 4001.{3}
	[¶6]  As the decision in this case will turn solely on a question of law,
we review the trial court's decision on the issue de novo.  See Francis v.
Pleasant Point Passamaquoddy Hous. Auth., 1999 ME 164, ¶ 5, 740 A.2d
575, 577; see also Passamaquoddy Water Dist. v. City of Eastport, 1998 ME
94, ¶ 5, 710 A.2d 897, 899 (stating that statutory interpretation is a
question of law reviewed de novo).
	[¶7]  In interpreting a statute, we have stated that: 

[We] first examine[] the plain meaning of the statutory language
seeking to give effect to the legislative intent, and we construe
the statutory language to avoid absurd, illogical, or inconsistent
results.  In addition, we consider "the whole statutory scheme of
which the section at issue forms a part so that a harmonious
result, presumably the intent of the Legislature, may be
achieved."

 
Guardianship of Zachary Z., 677 A.2d 550, 552 (Me. 1996) (citation
omitted).  As a plain reading of section 4001 does not reveal the
Legislature's intent with respect to the mandate of its final sentence, we
must look beyond the plain language in order to construe it.
	[¶8]  SPA cites statutes of other states that have provided reversion or
repurchase rights to former owners of condemned properties.  However, a
careful reading of the statutes creating such rights of repurchase, when
compared with the mandate of section 4001, demonstrates the flaws in
SPA's argument.  Statutes that have modified the general rule that
eliminates all rights of the former owner of land taken by eminent domain in
fee simple have set forth clear procedures delineating the rights of former
owners of property.  In Kentucky, the relevant eminent domain statute
states in pertinent part that,

[d]evelopment shall be started on any property which has been
acquired through condemnation within a period of eight (8)
years from the date of the deed to the condemnor or the date on
which the condemnor took possession, whichever is earlier, for
the purpose for which it was condemned.  The failure of the
condemnor to so begin development shall entitle the current
landowner to repurchase the property at the price the
condemnor paid to the landowner for the property.  The current
owner of the land from which the condemned land was taken
may reacquire the land as aforementioned.

Ky. Rev. Stat. Ann. § 416.670(1) (Banks-Baldwin 1976).  Using similar
language, New York provides that, 

[i]f, after an acquisition in fee pursuant to the provisions of this
chapter, the condemnor shall abandon the project for which the
property was acquired, and the property has not been materially
improved, the condemnor shall not dispose of the property or
any portion thereof for private use within ten years of acquisition
without first offering the former fee owner of record at the time
of acquisition a right of first refusal to purchase the property at
the amount of the fair market value of the property at the time of
such offer.

N.Y. Eminent Domain Procedure Law § 406 (McKinney 1982).{4}    
	[¶9]  These statutes demonstrate a clear legislative intent to depart
from the general rule and provide the former owner with a procedure for
redemption of land acquired by eminent domain, if the condemnor
subsequently determines that it no longer needs the land.  They provide for
both the time allotted for a reconveyance and the price at which the former
owner is entitled to repurchase the land.  The disputed language of section
4001 provides for neither; nor can it rationally be argued that the ambiguity
of the last sentence demonstrates any legislative intent to set up such a
procedure.
	[¶10]  As demonstrated by the statutes described above, the Maine
Legislature, if it so desired, could have established a procedure in section
4001 by which former landowners could repurchase the property taken.  In
the absence of any such specific procedure, we will not infer an intent to
provide one from the ambiguous sentence in section 4001 that is the focus
of this dispute.  We construe the last sentence of section 4001 as directory
to the entity acquiring the property by eminent domain, but without
creating any reversion or enforcement rights in the party from whom the
fee simple absolute was acquired.
	The entry is:
		
			Judgment affirmed.
Attorney for plaintiff:

Richard A. Davis, Esq.
313 Spurwink Avenue
Cape Elizabeth, ME 04107-9606

Attorney for defendant:

Mary Kahl, Esq.
Corporation Counsel
P O Box 9422
South Portland, ME 04116-9422

FOOTNOTES******************************** {1} . The parties presented to the trial court a joint statement of stipulated material facts from which they asked the court to determine their rights to the parcel of land. {2} . At the time of the taking in 1968, section 4001 provided in pertinent part as follows: Any municipality upon petition in writing signed by at least 30 of its taxpaying citizens, directed to the municipal officers, describing the land to be taken, as provided, and the names of the owners thereof so far as they are known, may, at a meeting of the legislative body of the municipality, direct such municipal officers to take suitable lands for public parks, squares, open areas, including marsh lands, swamps or wetlands, as defined in section 3851, playgrounds, buildings for municipal purposes or a public library building. . . . When land is taken under this section, the fee of such land may be taken and compensation assessed and paid accordingly. . . . Land taken for the purposes described shall not be used for purposes other than those for which originally taken. 30 M.R.S.A. § 4001 (1965), repealed by P.L. 1987, ch. 582, § A, 61 (effective February 26, 1988). Municipal eminent domain powers are presently governed by 30-A M.R.S.A. § 3101 (1996). {3} . A similar limitation is contained in 30-A M.R.S.A. § 3101(2) which states: . . . . 2. Limitation on use. Except as provided in paragraph A, land taken under this section may not be used for any purpose other than the purposes for which it was originally taken. . . . . 30-A M.R.S.A. § 3101(2) (1996). {4} . In addition to New York and Kentucky, several other states have enacted statutes providing for some specific right to reconveyance to former owners of land acquired by eminent domain. See, e.g., N.H. Rev. Stat. Ann. § 498-A:12 (1988) (providing right of former owner to repurchase property if abandoned within 10 years of condemnation); Ark. Code Ann. § 6-13-103 (Michie 1991) (permitting former landowner to repurchase condemned property within one year of a subsequent abandonment by the condemnor); N.C. Gen. Stat. § 136-19 (1992) (stating condemnor must give first consideration to an offer from former owner to repurchase land previously condemned but no longer needed).