Ky App: Condemnor Can Choose Between Cemetery And Oak Tree, Same As It Ever Was (and there’s no necessity to tie a yellow ribbon round the old oak tree)

In Allard v. Big Rivers Elec. Corp., No. 2019-CA-000486 (May 15, 2020), the Kentucky Court of Appeals made short work of each of the property owner’s arguments objecting to a taking of land for a electric-transmission corridor, and we won’t go through each contention here.

But that one that we will mention briefly is the necessity argument. You know, the one you often hear from your property owner clients: “they shouldn’t put the [road, fire station, whatever the condemnor claims is the public use] on my property, it makes much more sense to put the [public use/purpose thing] somewhere else.” Makes intuitive sense doesn’t it? After all, how can a taking be “necessary” to accomplish the stated public use or purpose if it is not the best place for the thing, or even a rational place to locate it?

But despite this, you also know that in all but a narrow bandwidth of cases, that argument goes nowhere, at least under the rulings in most jurisdictions.

That’s what happened here. Big Rivers said it would put its energy corridor … right here. Then, they discovered that an old cemetery was also “here.” Big Rivers decided to avoid that problem and altered the footprint of the taking to “over there.” Problem was, “there” would require the uprooting of a “300-year-old Chinkapin oak tree located along the path of the newly proposed easement.” Slip op. at 3. The owner objected, arguing lack of necessity. Don’t take the historic tree, you should be taking the cemetery. Any guesses on how the court ruled?

If you concluded the court rejected the argument, you’d be right:

Third, we find no merit in Allard’s lack of necessity argument. He posits that Big Rivers could have gone ahead with the original easement and moved the cemetery, or it could have chosen to build through a different route that would not affect the oak tree. However, “the condemning body has broad discretion in exercising its eminent domain authority including the amount of land to be taken.” God’s Center, 125 S.W.3d at 299 (citations omitted). It is not within the power of Allard to dictate the route the transmission line should take.

Slip op. at 19.

Same as it ever was. (Or maybe given this is an oak tree, this vid is more appropriate?)

Allard v. Big Rivers Elec. Corp., No. 2019-CA-000486 (Ky. App. May 15, 2020)