Montana

  • Broad public use language was addressed but not sufficiently narrowed.
  • Ambiguous definitions of blight mean that loophole remains open.
50 State Report Card 50 State Report Card Grade

50 State Report Card: Tracking Eminent Domain Reform Legislation since Kelo

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Current Abuses Bills
Senate Bill 41
Sponsored by: State Senator Jim Elliot
Status: Signed into law on May 8, 2007.

Senate Bill 363
Sponsored by: State Senator Christine Kaufman
Status: Signed into law on May 16, 2007.

Overview

The Montana Legislature was not in session in 2006, but citizens hoped to place a property rights initiative on the November 2006 ballot. However, Initiative 152 was challenged in court over issues regarding signature gathering and subsequently was struck from the ballot.

In 2007, the Legislature passed Senate Bills 41 and 363. These companion bills open up the two precise sections of code needing reform—the definitions of public use and blight. Unfortunately, the reform that passed barely increases property rights protections.

The Montana Code, like the statutes of almost every state prior to Kelo, provides a back door for municipalities to acquire private property through bogus blight designations. Unfortunately, SB 41 only rearranges a few words in the laundry list of vague criteria necessary to declare an area blighted. The bill was originally intended to prohibit the government from serving as a “pass through” (doing the dirty work of condemning property for private developers) with a strong provision prohibiting the transfer of condemned property to a private entity for ten years. Instead, the bill was amended to remove the time limit and add “intent” language, making it an easy provision to work around.

SB 363 addresses public use but fails to remove old, problematic definitions such as “and all other public uses authorized by the legislature of the state.” The bill also attempts to limit the blight loophole by reducing the criteria that qualify an area as blighted, but “deterioration” and “age obsolescence” remain on the list.
Other language in the bill purports to stop the use of eminent domain when its “purpose” is increased tax revenue. Like the “intent” language of SB 41, this provision will be easy to get around since local governments can always claim a different reason for acquiring property, and courts will not question that assertion.

These bills represent a first step toward eminent domain reform, but the state has more work to do to ensure that every Montanan is protected against the abuse of eminent domain.