Polson commission rejects use of eminent domain in property dispute

A developer’s efforts to bring city sewer and water to his property along the Flathead River were stymied by the Polson City Commission during last Wednesday’s meeting.

Hu Beaver and his attorney, Matt O’Neill, asked the commission to use its power of eminent domain to claim a 30’-by-110’ easement across the property owned by the Flathead River Resort and RV Park. The easement would allow Beaver to connect the four lots, which were annexed into the city in 1983, to city utilities.

O’Neill noted that he and his client have tried unsuccessfully to negotiate an easement with the RV park. They have also tried to secure a utilities easement on the east end of the lots, where they have an easement to access the property, but were rebuffed by the property owner.

The District Court has since rejected their petition for an “easement by necessity,” and that decision has been appealed to the Montana Supreme Court.

“If it was possible, humanly possible, to negotiate with these owners, it would be done,” O’Neill told the commission.

The other option he suggested was to de-annex the four lots, which would enable the developer to add individual wells and septic systems under county regulations.

The Lake County Commissioners, in a letter dated Jan. 22, voiced their support for an extension that would make city sewer and water available to the county fairgrounds. The project would help the county complete its concert venue and develop a proposed boat-launching facility next to the Flathead River.

Polson Fairgrounds Inc., which manages the fairgrounds for the county, also submitted a letter of support.

“From a policy perspective, I don't think it's a good place for us to be,” city manager Ed Meece told the commission of the eminent domain proposal. “I think it's better for us to let private property owners work this situation out. …  There are ways the county could obtain water and sewer services if they so wish without this particular eminent domain request.”

In his written opinion, city attorney Dave Michie said the city code prohibits the use of eminent domain for “economic development with respect to redevelopment plans or transfer of property to a private developer.” He added that it wasn’t in the City’s best interest to own an easement across private property that would add to the public works department’s duties, and noted it’s the responsibility of the developer to “install at their expense” service lines to available city connection points – in this case along Regatta Road.

“The City should not take on the burden of the private developer in developing privately owned land,” Michie concluded.

Commissioner and former attorney Lisa Rehard noted that there are costs associated with a condemnation proceeding, including potential litigation. “If you elect to condemn, you better have a budget to go along with it, because it's fairly open-ended,” she said.

O’Neill responded that his client was prepared to cover those costs, to which Rehard replied, “that lends to the argument that it's really a private cause and not a public cause.”

As to the suggestion that the commission allow Beaver to withdraw his property from the city limits so as to fall under county jurisdiction, city manager Ed Meece said he doesn’t support de-annexation because it leads to the proliferation of septic systems inside the city or on its outskirts.

In this case, “we would be positioning these properties for four new septic systems directly on the banks of the Flathead River – someplace which is surely not desirable.”

Commissioner Jen Ruggless also expressed concerns about using eminent domain for a private development. “It's not ethical,” she said.

“If you guys got into an agreement with the landowner who owns that property and were able to get it to go through, heck, let's do it,” she said. “But that landowner has just as much right to their land as you do to yours.”

O’Neill countered that the Montana Supreme Court “has held multiple times that condemning property to protect the lake, to protect the city's tax base, or any other public benefit which is identified in the statutes as any public water system can be done for a single party.”

He also warned the commission, “you can’t have it both ways. You can't keep them (the Beavers) annexed in and say you can never develop your property … and at the same time collect taxes from them and not let them use their property.”

“They've paid $100,000 in taxes over the last 40 years and they have no ability to use their property,” he added.

The commissioners voted unanimously against using eminent domain to secure the easement.

MAYOR ERIC HUFFINE gave the oath of office to two new police officers, Colon Holcomb and Nick Dunegan. Police Chief George Simpson introduced them, saying the two men “share the same dedication to service, integrity and commitment to keeping Polson a safe place for all.”

Holcomb is a Navy veteran, who trained in military policing before joining the Baltimore Police Department, where he gained “invaluable experience investigating high-level crimes and working with diverse communities.”

Dunegan is a native Montanan, who worked at Logan Health in Kalispell before joining the Polson Police Department. “His compassion, work ethic and dedication to the safety and well-being of others make him an exceptional fit for our team,” Simpson said.

In other business, the commissioners gave city manager Meece the go-ahead to advertise the position of city judge from March 1-April 15. Meece said Judge Mike Larson’s term expires July 1, and he didn’t know if Larson planned to apply for the position again.