Boise Redevelopment Agency v. Yick Kong Corp.

• Decision Date: 02 June 1972
• Docket Number: No. 11010,11010
• Citation: Boise Redevelopment Agency v. Yick Kong Corp., 499 P.2d 575, 94 Idaho 876 (Idaho 1972)
• Parties: BOISE REDEVELOPMENT AGENCY, Plaintiff-respondent and Cross-Appellant, v. YICK KONG CORPORATION, a Washington corporation, et al., Defendants-Appellants and Cross-Respondents.
• Court: Idaho Supreme Court

Page 575

499 P.2d 575

94 Idaho 876

BOISE REDEVELOPMENT AGENCY, Plaintiff-respondent and Cross-Appellant, v.YICK KONG CORPORATION, a Washington corporation, et al., Defendants-Appellants and Cross-Respondents.

No. 11010.

Supreme Court of Idaho.

June 2, 1972.

Eli A. Weston, Boise, for appellants-cross-respondents.

Hawley, Troxell, Ennis & Hawley, Boise, for respondent-cross-appellant.

C. Timothy Hopkins, of Hansen & Hopkins, Idaho Falls, amicus curiae.

SHEPARD, Justice.

This appeal presents for decision the constitutionality of the Idaho Urban Renewal Law of 1965.Although this case originated as one in condemnation wherein plaintiff sought to acquire real property of the defendants, the sole question presented herein relates to defendants-appellants' numerous and various contentions regarding the constitutionality of the legislative act in question.It should be noted initially that defendants-appellants, assuming the statute is constitutional, raise no question pertaining to the public use for which the property is being taken, the necessity of the property being taken for the completion of the project, nor the amount of money awarded defendant for the property.The issues herein relate solely to the constitutionality of the statutes in question, the validity of the agency sought to be created by the statute and the ability of the agency to so operate under the authority granted it by the statute.

The Idaho Urban Renewal Law (Idaho Session Laws of 1965, Chapter 246) is codified as I.C. § 50-2001, et seq.Therein the legislature found and declared:

'* * * that there exist in municipalities of the state deteriorated and deteriorating areas (as herein defined) which constitute a serious and growing menace, injurious to the public health, safety, morals and welfare of the residents of the state; that the existence of such areas contributes substantially and increasingly to the spread of disease and crime, constitutes an economic and social liability imposing onerous municipal burdens which decrease the tax base and reduce tax revenues, substantially impairs or arrests the sound growth of municipalities, retards the provision of housing accommodations, aggravates traffic problems and substantially impairs or arrests the elimination of traffic hazards and the improvement of traffic facilities; and that the prevention and elimination of these conditions is a matter of state policy and state concern in order that the state and its municipalities shall not continue to be endangered by areas which are focal centers of disease, promote juvenile delinquency, and consume an excessive proportion of its revenue because of the extra services required for police, fire, accident, hospitalization and other forms of public protection, services and facilities.

'It is further found and declared that the powers conferred by this act are for public uses and purposes for which public money may be expended as herein provided and the power of eminent domain and police power exercised; and that the necessity in the public interest for the provisions herein enacted is hereby declared as a matter of legislative determination.'I.C. § 50-2002(Chap. 246, § 2, S.L. 1965)

I.C. § 50-2005 provides:

'No urban renewal agency and no municipality shall exercise the authority hereafter conferred by this act until after the local governing body shall have adopted a resolution finding that: (1) one or more deteriorated or deteriorating areas as defined in this act exist in such municipality; (2) the rehabilitation, conservation, redevelopment, or a combination thereof, if such area or areas is necessary in the interest of the public health, safety, morals or welfare of the residents of such municipality; and (3) there is need for an urban renewal agency to function in the municipality.'

I.C. § 50-2006 provides for the establishment in each municipality of an 'Urban Renewal Agency,' which under the provisions of I.C. § 50-2005 cannot exercise any powers until the proper findings have been made by the local governing body.

Pursuant to I.C. § 50-2005 the Boise City Council made the requisite findings of 'deteriorated and deteriorating areas' within the City of Boise.On March 22, 1971 the Boise City Council adopted an amended Urban Renewal plan covering a certain area in downtown Boise.Defendants do not challenge the procedures carried out by the Boise City Council as conforming to the requisite procedures specified in the statute.Within the area contained in the amended urban renewal plan is located the real property and the building situated thereon owned by the defendants and the subject of this action.

Negotiations between plaintiff and defendants for the purchase of the property were unsuccessful and plaintiff filed an action in condemnation to acquire the property of the defendants.The trial court gave judgment of condemnation in favor of the plaintiff but found one clause of the Idaho Urban Renewal Act of 1965 to be unconstitutional.Defendants appeal from the judgment of condemnation and plaintiff has cross-appealed from the finding of the trial court of partial unconstitutionality of the Idaho Urban Renewal Act of 1965.

Defendants-appellants first contend that the trial court erred in holding that defendants' property was being taken for a public use and assert that such taking is prohibited by Article I, Sections 13and14 of the Idaho Constitution and the Fourteenth Amendment to the Constitution of the United States.Article I, Section 13 of the Constitution of the State of Idaho and the Fourteenth Amendment to the Constitution of the United States provide that no person shall be deprived of property without due process of law.Article I, Section 14 of the Constitution of the State of Idaho provides:

'The necessary use of lands for (irrigation and mining usages, discussed infra), or any other use necessary to the complete development of the material resources of the state, or the preservation of the health of its inhabitants, is hereby declared to be a public use, and subject to the regulation and control of the state.

'Private property may be taken for public use, but not until a just compensation, to be ascertained in the manner prescribed by law, shall be paid therefor.'

Other constitutional and statutory provisions of significance are:

Article 11, § 8 states:

'The right of eminent domain shall never be abridged, nor so construed as to prevent the legislature from taking the property and franchises of incorporated companies, and subjecting them to public use, the same as the property of individuals * * *.'

I.C. § 7-701 states:

'Subject to the provisions of this chapter, the right of eminent domain may be exercised in behalf of the following public uses:

'1.Public buildings and grounds for the use of the state, and all other public uses authorized by the legislature.

'2.Public buildings and grounds for the use of any county, incorporated city, village, town * * * and all other public uses for the benefit of the state or of any county, incorporated city, village or town or the inhabitants thereof.'

Defendants assert that because of the proposed methodology for the development of the area in question under the amended urban renewal plan, the use is not 'public' as required by the various constitutional and statutory strictures of Idaho.Plaintiff's proposal, as set forth in the plan, is to clear the area and thereafter permit private enterprise, on a bid basis, to construct and occupy certain of the buildings planned for the area.Some of the proposed buildings for the area may be used by the City of Boise or by the County of Ada, but the majority will be constructed and occupied by private commercial enterprises.The defendants contend that these private commercial enterprises will 'benefit' by the plan and that therefore condemnation is not allowed by the constitutional and statutory strictures.

Defendants base their arguments upon three cases which so held and which rejected similar plans in other states, to-wit: Florida, Georgia and South Carolina.Adams v. Housing Authority of City of Daytona Beach, 60 So.2d 663(Fla.1952);Housing Authority of City of Atlanta v. Johnson, 209 Ga. 560, 74 S.E.2d 891(Ga.1953);Edens v. City of Columbia, 228 S.C. 563, 91 S.E.2d 280(1956).Respondent, on the other hand, indicates that more than thirty other states have in similar situations and under similar plans accepted the 'public use' as being legitimately served by the clearance of blighted and/or deteriorated areas.The fact that private interests may incidentally benefit has not been held to prevent the application of the 'public use' doctrine as sought by respondent herein.See: Annotation, Urban Redevelopment Laws, 44 A.L.R.2d 1414, and later case service;Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 103, 99 L.Ed. 27(1954), in which it is stated:

'Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine.Here one of the means chosen is the use of private enterprise for redevelopment of the area.'

See also: Rabinoff v. District Court, 145 Colo. 225, 360 P.2d 114(1961);Redevelopment Agency of San Francisco v. Hayes, 122 Cal.App.2d 777, 266 P.2d 105(Cal.App.1954), cert. den. sub nom.Van Hoff v. Redevelopment Agency of San Francisco, 348 U.S. 897, 75 S.Ct. 214, 99 L.Ed. 705(1954);Foeller v. Housing Authority of Portland, 198 Or. 205, 256 P.2d 752(1953).

The state, both through the power of eminent domain and the police powers, may legitimately protect the public from disease, crime, and perhaps even deterioration, blight and ugliness.See: Berman v. Parker, supra.Unless defendants herein have shown that the purpose of the urban renewal plan fails to meet the objectives set forth in I.C. § 50-2002 and is instead designed to predominately benefit private interests, their argument must fail.Mere incidental benefit to private interests...