Public Power, Private Gain: Maine



In 1954, Maine’s Supreme Court held that eminent domain could not be used simply to transfer property from one private owner to another.278 Since then, Maine municipalities have refrained almost entirely from condemnations that benefit private parties. A Maine trial court in 2001 prevented an attempt to condemn for economic development, and the Maine legislature that same year passed a law providing for recovery of condemned property by its former owners if the government does not make use of it within eight years. The only cautionary note was a Maine Supreme Court decision allowing the condemnation of a private parking lot for a public parking lot leased to an island ferry and also providing parking for island residents. Still, the public aspects of the condemnation are significant, because the parking lot is owned by the government and serves the local transportation system. Thus, the decision poses little threat that eminent domain will be used more aggressively for private parties in Maine.

Legislative Actions


Maine recently passed a law strengthening the rights of property owners to reacquire property taken through eminent domain. In 2001, the Maine legislature passed a law that requires that if the condemned property is not used for the purpose of the taking within eight years, the former owner will have a right to purchase the property back. If the government entity wants to keep the property, it must reaffirm that it still intends to use the property for the original purpose. If the government does not still intend to use the condemned property for the original purpose, it must notify the former owner of the right of first refusal to purchase the property back. The former owners or their heirs then have 90 days to exercise their option.279 The law was passed in response to a decision by Maine’s highest court that allowed a municipality to sell property it had condemned nearly 40 years before and never used. The former owner had been trying to get it back (see below).



Abandoned Use: Former Property Owner Fights to Regain Land


South Portland

In February 2000, Maine’s highest court cleared the way for South Portland City officials to sell a valuable 1.45-acre piece of property near the Maine Mall, despite the objections of the former owner, which had sued to regain ownership of the land. The City condemned the land in 1968, originally planning to build a fire station. The owner, a real estate partnership called South Portland Associates, was paid $7,300 at the time. However, the City ultimately determined that the site was poorly located and too small for the project, so the property sat vacant. After 30 years, the City decided it would sell the land, whose value had multiplied to $275,000. South Portland Associates sued on the grounds that state law forbids a municipality from using land taken through eminent domain for any purpose other than the originally stated public use. The City argued that the land rightfully belonged to the taxpayers and was purchased legally and in good faith. The trial court ruled that since Maine law neither sets deadlines for municipalities to use condemned land, nor spells out what happens when the municipality no longer wants to use the land, South Portland was free to sell the property to a private party. On February 18, 2000, the Maine Supreme Judicial Court upheld that decision, stating that the law places no limits on the City’s resale of the land, even at a tremendous profit.280 The following year, the Maine legislature passed a law allowing former owners to buy back property taken by eminent domain but not used for the original purpose of the taking (see above).



Private Use Condemnations


Cousins Island

Nancy Blanchard owned a 1.4-acre parking lot that she leased to Chebeague Transportation Company, which operates a ferry between Chebeague Island and Cousins Island. The lot served as the main parking lot for users of the ferry. When Blanchard decided in October 1999 not to renew the lease, the State Department of Transportation condemned the property to ensure that the ferry would not lose its parking. Chebeague Transportation Company is a publicly traded for-profit corporation that was created by Chebeague Island residents as a community enterprise, and the lot’s parking spaces are set aside mainly for island residents. After the DOT seized the land and paid Blanchard, it leased the lot to the ferry for $1 a year. Blanchard challenged the taking, but the trial court decided that it served an essential public use. On appeal, the Maine Supreme Judicial Court agreed, holding that the ferry’s grant of priority parking to year-round residents of Chebeague Island does not render the use private.281


Kennebec County

In 1998, the Kennebec Regional Development Authority condemned a parcel of land owned by Gary and Theresa Craig for the FirstPark “regional super park,” a privately owned industrial development for which the developer would market sites to other private businesses. The Craigs refused to negotiate with the Authority, and instead the family challenged the taking in court. They argued that a condemnation solely for the purpose of spurring private economic development did not serve a valid public purpose under Maine law. In April 2001, the Kennebec County Superior Court agreed, ruling that the state’s narrow interpretation of the term “public use” does not allow the taking of private property for development of a regional industrial facility.282


*These numbers were compiled from news sources. Many cases go unreported, and news reports often do not specify the number of properties against which condemnations were filed or threatened.

278 See Opinion of the Justices, 131 A.2d 904, 905-06 (Me. 1957).

279 1 Maine Rev. Stat. § 815 (2002); H.B. 99, 120th Sess. (Me. 2001).

280 See South Portland Associates v. City of South Portland, 746 A.2d 365, 368 (2000); see also John Richardson, “High Court: City May Sell Valuable Lot It Seized in 1968; South Portland Associates Was Forced to Sell a 1.45-Acre Parcel for a Fire Station that Was Never Built,” Portland Press Herald, Feb. 29, 2000, at 1B.

281 Blanchard v. Department of Transportation, 798 A.2d 1119, 1128 (Me. 2002).

282 See Craig v. Kennebec Regional Development Authority, 2001 Me. Super. LEXIS 51, at *8-*9 (Apr. 2, 2001).