Reviving Necessity in Eminent Domain

By Bird, Robert C. | Harvard Journal of Law & Public Policy, Winter 2010 | Go to article overview

Reviving Necessity in Eminent Domain


Bird, Robert C., Harvard Journal of Law & Public Policy


  I. 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. …

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