Check this out, a decision upholding a necessity challenge to a taking.
Necessity, you say? What’s this? Aren’t necessity challenges subject to an even more deferential judicial standard of review than the rational basis test applied to declarations of public use? Didn’t the U.S. Supreme Court in Adirondack Ry. Co. v. New York, 176 U.S. 335, 349 (1900) say that “[t]he general rule is that the necessity or expediency of appropriating particular property for public use is not a matter of judicial cognizance but one for the determination of the legislative branch of the government….”? What gives?
In Lafayette City-Parish Consolidated Gov’t v. Bendel, No. 22-0432 (Dec. 23, 2022), the local government brought an expropriation action (that’s eminent domain or condemnation to you non-Louisiana chappies), seeking to take property to construct four detention pods to improve drainage. The owner objected, challenging the public use and necessity of the taking (the government was taking more property than it needed). The trial court agreed with the owner and dismissed. The Louisiana Court of Appeal affirmed.
How so, you may ask, given the low bar for necessity where the courts for the most part wash their hands of the issue?
This challenge, as you might have guessed, was made under Louisiana law. And there, the standards are a bit more realistic. Although Louisiana law also recognizes that the extent and location of the taking are within the discretion of the condemning agency and its decision is entitled to a presumption the taking satisfies a public need or interest, it also recognizes that if the owner carries its burden of showing the location was selected in bad faith or so capriciously or arbitrarily that the selection “was without an adequate determining principle,” then a reviewing court may conclude the condemnor abused that discretion.
That’s what happened here. Although the mere availability of alternative sites to place the drainage project “is not, by itself, an indication that the expropriator has acted arbitrarily or capriciously,” slip op. at 7, the appeal court reviewed the trial court’s findings that looked at things like “alternate route[s], costs, environmental factors, long-range area planning, and safety considerations.” Id.
In the end, the court of appeal reviewed the evidence submitted by the parties — which included testimony by one witness that “he had never seen a case where a property that has never been flooded was converted to purposely make it flood because usually lower elevated property would be used so that so much excavation would not be necessary,” slip op. at 16 — and agreed that the owner carried its burden:
In this case, the testimony and evidence make clear that no alternate routes were considered. The total cost of the project is unknown. Environmental factors and long range area planning were not considered. None of the witnesses testifying on behalf of LCG indicated that safety considerations were made regarding the gas line that runs through the property. Based on all of these factors, we cannot say that the trial court was manifestly erroneous in finding that LCG acted arbitrarily and capriciously.
Slip op. at 19.
Now if only other courts would look at necessity the same way.
Lafayette City-Parish Consolidated Gov’t v. Bendel P’ship, No. 22-0432 (La. Ct. App. Dec. 23, 2022)