|Legal Opinion: |
Text of Document: January 12, 1993
You have asked whether a municipality may institute eminent domain proceedings to acquire property for a maintenance garage when the property is owned by a member of the city commission? In my opinion the answer is yes as long as the taking meets the requirements of public use.
Apparently, the City Commissioners for the Town would like to acquire a specific parcel that is owned by a member of the commission. The property may not be purchased outside of an eminent domain proceeding because of the Tennessee conflict of interest statutes. Those statutes prohibit a member of the governing body from entering into a contract in which that member has a direct ownership interest. See Tennessee Code Annotated, §§6-54-107 and 12-4-101.
There is no question that the Town is authorized to condemn property to construct a maintenance garage and that such use qualifies as a public use. The courts, absent fraud or arbitrary or capricious conduct, do not examine a municipality's motives for the taking. This rule was best stated in City of Knoxville v. Heth, 186 Tenn. 321, 210 S.W.2d 326 (1948).
Having determined that the proposed taking is for a "public use", it is the rule that a municipal corporation's determination of necessity in these cases is conclusive upon the courts in the absence of fraudulent, arbitrary, or capricious action by the City....
The Tennessee Supreme Court continued, quoting the earlier opinion of Southern Ry. Co. V. Memphis, 126 Tenn. 267, 282-283, 148 S.W. 662, 41 L.R.A.,N.S., 828, Ann. Cas.1913E, 153:
But all other incidents of the taking are political questions, for the determination of the courts. Selecting the property to be taken, as contra-distinguished from similar property in the same locality, determining its suitableness for the use to which it is proposed to put it, as well as deciding the quantity required, are all political questions, which inhere in and constitute the chief value of the power to take.
See also: Duck River Electric Membership Corp. v. City of Manchester, 529 S.W.2d 202 (Tenn. 1975); Harper v. Trenton Housing Authority, 38 Tenn. App 396, 274 S.W.2d 635 (Tenn. App.1955).
Nor will the fact that the taking is primarily motivated by private profit disturb the "public purpose" aspect of the proceeding. So long as there is public use the courts will uphold the taking. Ryan v. Louisville and N. Terminal Co., 102 Tenn 111, 50 S.W. 744, 45 L.R.A. 305. (1899)
A possible challenge to the exercise of eminent domain under these circumstances is that it is being undertaken simply to avoid the conflict of interest provisions and not because of any public need. However, under the eminent domain statutes, there is no mechanism for intervention by anyone who does not have an interest in the property. I can find no case where a party, not the condemnor or condemnee, intervened to contest the taking.
It is possible a court would find that taxpayers in the Town have standing to challenge the taking because it is a costly undertaking, potentially a fraud and a misuse of taxpayer funds. Such a challenge would have to be done through a separate legal procedure, perhaps a quo warranto proceeding against the City Commission for authorizing the eminent domain, or even an injunction. Obtaining standing as a taxpayer is difficult, but not impossible, and it allows the court to consider whether the expenditure (or proposed expenditure) of public monies is valid.
The right to maintain an action to question illegal expenditures by a public agency is based upon the taxpayer's equitable ownership of such funds and his or her liability to replenish the public treasury for the deficiencies caused by the misappropriation. McQuillen, Municpal Corporations, 3d Ed., §52:13.
In my opinion the City Commissioners may condemn a commissioner's property for a legitimate public use. The court will not question the selection of this particular property versus other suitable property nor the necessity of the acquisition in the eminent domain proceeding.