Reviving necessity in eminent domain.

AuthorBird, Robert C.
  1. THE ROLE OF NECESSITY IN EMINENT DOMAIN A. Unnecessary Necessity: The Cases of Pequonnock and Poletown B. The Aftermath of Kelo v. City of New London: Has Public Outrage Prompted Meaningful Eminent Domain Reform? II. RUBBER STAMPS AND HIGH HURDLES A. Judicial Nonreviewability Invites Government Abuse B. Strict Scrutiny Review Would Unduly Interfere with Legislative Will III. TOWARD A MODEST REVIVAL OF NECESSITY IN EMINENT DOMAIN A. An Arbitrary and Capricious Standard is Too Lax B. The Less Drastic Means Test: Measured Judicial Review CONCLUSION Necessity is not a word to be taken lightly. The necessity defense in criminal law can excuse most criminal acts. (1) Manifest necessity permits a court to declare a mistrial in a criminal proceeding. (2) The business necessity defense permits employers to retain a discriminatory hiring policy. (3) Military necessity condones armed conflict and the destruction of enemy property in wartime. (4) Dictionaries use words like indispensable, unavoidable, and imperative to define it. (5)

    Few doctrines have relied on the necessity concept longer than eminent domain. In 1625, Hugo Grotius, the Dutch jurist credited with coining the phrase "eminent domain," described "extreme necessity" as one condition under which the State may alienate or destroy private property for a public purpose. (6) Necessity doctrine has influenced American land use since colonial times. As early as 1700, a Pennsylvania law required that "no such road shall be carried through any man's improved lands, but where there is a necessity for the same." (7) The concept appeared periodically in state court cases throughout the nineteenth century and remains present today.

    The necessity doctrine is a fundamentally simple idea--a government entity may only take property via eminent domain when it is necessary to further a proposed public use. (8) The burden of proof for establishing the necessity of the taking rests on the condemning authority. (9) The landowner can present her own supporting evidence. If a court finds lack of necessity, it can prevent the proposed taking. (10)

    Eminent domain represents one of the government's "most drastic non-penal incursions" into individual rights. (11) "It requires that [private] owners relinquish their property without their consent," pitting private interests against a public good. (12) Common sense would suggest that a municipality must work to show sufficient necessity to use eminent domain. An eminent domain taking can impose lasting trauma, and the power should not be used lightly. (13)

    Yet this common sense fails. In theory, necessity is an important check against abusive government action. In practice, necessity is a green light to seize almost any land a government entity wishes. The condemnor does not need to present plans, goals, feasibility studies, or other documentation, but must simply desire a parcel and be willing to pay for it. Judges have concluded en masse and with little debate that involuntary government land seizures require little judicial attention. Assuming other requirements apart from necessity have been met, the result in practice is that the land a municipality wants, a municipality gets. Although many takings are genuinely beneficial and well-reasoned, the necessity "requirement" has become a fig leaf for government recklessness. In spite of this widespread judicial abdication, the necessity requirement remains largely unexplored by scholars, who shine the spotlight on its far more popular and controversial cousin, the requirement of public use. (14)

    This Article proposes a modest revival of the necessity requirement in eminent domain. Part I explores the dormant state of necessity doctrine. It also highlights examples of abuses of eminent domain power afforded by a lack of necessity constraint. Part II questions the effectiveness of two positions on the role of necessity, one recommending total nonreviewability of necessity questions and the other suggesting that takings be subjected to strict scrutiny review. Part III presents a "less drastic means" necessity model that strikes a balance between protecting government discretion and curbing abuse. This Article reasons that a limited revival of necessity review in eminent domain cases could protect landowners against reckless takings while allowing government planners to retain broad discretion to implement public projects.


    Necessity doctrine has the jurisprudential deck stacked against it. An attorney, judge, or law clerk wanting to educate himself about necessity would likely consult Nichols on Eminent Domain, (15) the leading treatise on condemnation law. (16) Turning to section 4.11, the very first line of the section confronts the reader with the jurisprudential subtlety of a gavel, proclaiming that "[t]he overwhelming weight of authority makes clear that the question of the necessity or expediency of a taking in eminent domain lies within the discretion of the legislature and is not a proper subject of judicial review." (17) If that announcement did not convince the reader to declare necessity dead and return the tome to its shelf, then twelve consecutive pages of cases cited in support of this single sentence would undoubtedly persuade. Perhaps the editor held his tongue firmly in cheek when he titled the section the "Question of Necessity." (18)

    Works from an earlier century appear no less categorical. An 1879 treatise states that "[i]f the use is certainly a public one, then the legislative authority over the subject cannot be restrained or supervised by the courts." (19) A contemporaneous treatise remarked that "whether the exigencies of the occasion and the public welfare require or justify its exercise, are questions which rest entirely with the legislature." (20) In spite of these pronouncements, Nichols does acknowledge that, at least in theory, necessity review can check the exercise of eminent domain. Nichols notes that a few state statutes assign an oversight role to the judiciary, (21) and explains that Florida courts, for example, have articulated five criteria that a condemnor must consider in order to exercise its discretion properly. (22) Nichols also states that a theoretical limit exists beyond which a legislature cannot pass. (23) Exceptions for bad faith, abuse of power, and exceeding statutory authority appear to be uncontroversial, though very narrow, exceptions. (24)

    These exceptions have produced a small number of cases that under extreme conditions prevented a taking due to a lack of necessity, as discussed in an earlier coauthored article. (25) Examining cases across fifty states and over a one-hundred-year period, that article concluded that three conditions exist where a necessity challenge might not be an impossible task. First, courts have found lack of necessity when the eminent domain plan was utterly speculative or remote in time. (26) This situation might occur when a redevelopment plan is especially uncertain or when the timing of the plan is so vague as to be extremely distant in the future or entirely unknowable. (27) Second, procedural or regulatory hurdles may prevent the condemnor from proceeding with development. (28) Third, in isolated instances courts have found no necessity when the property at issue was a peripheral property in a development plan and other factors further militated against the taking. (29)

    Although organized by type, these decisions do not represent a body of precedent from which to divine a national trend. Rulings finding no necessity like these are isolated and rare indeed. Most of the time courts simply defer to the condemning authority even on slim showings of necessity, if the question is even raised at all. For example, a taking for a future use is theoretically limited to uses fairly anticipated within a reasonable time. (30) Yet courts have upheld involuntary seizures of land that the condemning authority would not need for twenty or even thirty years. (31) Similarly, just as speculative takings theoretically lack sufficient necessity under eminent domain, courts have allowed authorities to seize land when the exact nature of the use was not known, and the authority could not state when the land would actually be utilized. (32) Thus most courts allow necessity doctrine to play only a negligible role in overseeing municipal conduct.

    It would not be entirely unwelcome if government planners were to face stiff necessity challenges. Planners need to exercise discretion in order to optimize redevelopment goals. If necessity places virtually no limits on what city planners can take for economic development, then there is no incentive to consider equally viable alternative options or the likelihood of the success of the development plan. With such a lackluster necessity doctrine, judges will be insulated from investigation or appreciation of the costs imposed on citizens who have their land taken by eminent domain. For judges, necessity thus becomes yet another procedural rule and the landowner's home just another object to be parceled according to the commands of books and briefs. (33) Yet this problem is not merely theoretical. People and businesses suffer. Neighborhoods are torn apart. The municipal recklessness that a nonexistent necessity doctrine invites imposes severe consequences for landowners. The following section chronicles two such examples of inappropriate government action.

    1. Unnecessary Necessity: The Cases of Pequonnock and Poletown

      The lack of a necessity doctrine invites abuse. One need not look past the very state that produced the landmark decision Kelo v. City of New London (34) to find it. Five years before Kelo, a land dispute was taking place a short drive from New London, Connecticut, in a similarly struggling urban municipality. The City of Bridgeport sought to take a triangular-shaped piece of coastal land called Steel Point by eminent...

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