Chapter 3 - § 3.2 • NECESSITY CHALLENGE IN SELECTION AND LOCATION OF PROPERTY TO BE TAKEN

• Jurisdiction: Colorado

§ 3.2 • NECESSITY CHALLENGE IN SELECTION AND LOCATION OF PROPERTY TO BE TAKEN

On various occasions throughout the evolution of Colorado eminent domain law, landowners have sought to defeat the right to take by claiming that there is no need or necessity for their property to be condemned. Although the two concepts may relate to each other and even overlap to some extent, a lack of necessity challenge is different than a lack of public use challenge. In Thornton Development Authority v. Upah, the federal district court in Colorado provided a fair explanation of the key differences between the two elements.³ As stated by the district court:

Basically, necessity involves the selection of the location of the property to be acquired and the quantity of the land required. "The determination of necessity [by the condemning authority] is an essential part of the power of eminent domain. Once necessity is determined by legislative act, no further finding or adjudication is required." City of Thornton, 575 P.2d 382, 389 (citing Londoner v. Denver, 52 Colo. 15, 119 P. 156 (1911)). In other words, the condemning authority's determination of necessity is "not reviewable by the judiciary absent a showing of fraud or bad faith." City of Thornton, 575 P.2d 382, 389 (citing Colorado State Board of Land Commissioners v. District Court, 163 Colo. 338, 430 P.2d 617 (1967); Dallasta v. Department of Highways, 153 Colo. 519, 387 P.2d 25 (1963); Mack v. Highway Commission, 152 Colo. 300, 381 P.2d 987 (1963); Denver v. Board of Commissioners, 113 Colo. 150, 156 P.2d 101 (1945); and LaVelle v. Town of Julesburg, 49 Colo. 290, 112 P. 774 (1911)); see also Welch v. City and County of Denver, 141 Colo. 587, 590, 349 P.2d 352 (1960) ("[I]n the absence of a showing of bad faith on the part of the agency acquiring property . . ., the determination of the administrative body as to the necessity for the particular acquisition will not be disturbed by the courts.")
. . . Unlike the question of necessity, deference is not given to the condemning authority's finding of a public purpose and no showing of bad faith is necessary with respect to this issue. The court determines whether the purpose for the taking is public or private. See Larson v. Chase Pipe Line Co., 183 Colo. 76, 514 P.2d 1316 (1973) (Judicial approval of the purpose for the taking of property as a public use is required.)⁴

As the Thornton court observed, a necessity challenge in a condemnation case generally involves the selection of the location of the property to be acquired and/or the quantity of land to be taken from the owner for the project. A good example of a necessity challenge can be found in Union Pacific Railroad Co. v. Colorado Postal Telegraph Cable Co., where a railroad argued that there was no need for a telegraph company to condemn a right-of-way from the railroad for the erection of a telegraph line since there was an adjacent highway within which the line could be placed.⁵ In rejecting this assertion, the Colorado Supreme Court noted that the legislature had vested the telegraph company with "discretion in locating their telegraph lines" and, as a result, the court would not "exercise supervision with respect to such matters."⁶ The court went on to describe the following limited circumstances under which a judicial inquiry of the company's decision regarding the location of its lines could be made:

The discretion which the corporation may exercise in determining the route of its lines cannot be interfered with in the absence of a showing of bad faith, a malicious motive, or that the taking of a particular tract sought to be condemned would entail a great loss, which might readily be avoided.⁷

In Lavelle v. Town of Julesburg, a municipality sought to condemn a parcel of land for the operation of a waterworks system.⁸ After the jury returned an award, the owner appealed the trial court's refusal to dismiss the case on the owner's assertion that there was no necessity to take the property in the first instance. In affirming the trial court's ruling on this issue, but remanding the case on other grounds, the Colorado Supreme Court reaffirmed the holding in Union Pacific that only in limited circumstances should a court question the condemnor's determination of necessity for taking property. As stated by the court:

It is the province of the town authorities to determine what property shall be taken and condemned upon which to construct a plant to operate a waterworks system belonging to the Town. As applied to the facts of this case, the exercise of discretionary power and judgment of municipal officers, when acting within the scope of their authority, is conclusive unless it clearly appears their action was fraudulent or unreasonable.⁹

Thus, under Lavelle, "what property shall be taken for the public use under consideration, how much, and its location" are to be left to the discretion of the condemning entity, unless fraud or bad faith is found.¹⁰ The court...