The Utah DOT took all 15 acres of Carlson's property even though it needed only 1.2 acres for the project. Why? Because it wanted to "avoid[] litigation regarding Carlson's severance damages." Well, that's mighty good of them to want to keep it simple.
Carlson, however, objected on two grounds. First, he asserted that a Utah statute (Utah Code § 72-5-113) did not authorize excess takings. Second, he asserted that the DOT did not have a public use in taking the excess. The trial court rejected his statutory argument, and did not address his constitutional claim.
In Utah Dep't of Transportation v. Carlson, No. 20120414 (June 24, 2014), the Utah Supreme Court affirmed the trial court's rejection of the statutory claim, but concluded that Carlson's constitutional challenge was a "serious one."
Although we agree with UDOT’s statutory position and thus affirm that aspect of the district court’s decision, we reverse and remand for further proceedings on the constitutional question. That question—whether a taking of excess property under Utah Code section 72-5-113 fails for lack of a "public use" under the federal or state Takings Clause—is a serious one. Because we conclude that this issue was properly pre-served and should have been addressed expressly by the district court, we reverse and remand to allow that court to address this question in the first instance.
Slip op. at 2. Utah's statute provides: "If a part of an entire lot, block, tract of land, or interest or improvement in real property is to be acquired by the department and the remainder is to be left in a shape or condition of little value to its owner or to give rise to claims or litigation concerning damages, the department may acquire the whole of the property and may sell the remainder or may exchange it for other property needed for highway purposes." Carlson argued that DOT's ability to "acquire" excess property under this provision was limited to voluntary acquisition, and did not include condemnation. The Supreme Court rejected the argument, concluding that when the legislature said "acquire" it meant to include involuntary acquisitions. Read together with other Utah statutes, the court held it was clear that it was not intended to be limited to voluntary transactions.
Sidebar: excess taking provisions are common in eminent domain codes (see Hawaii's version, for example, which is similar to Utah's, although worded more clearly: "Private property may also be taken by the State or any county in excess of that needed for such public use in cases where small remnants would otherwise be left or where other justifiable cause necessitates such taking to protect and preserve the contemplated improvement, or public policy demands such taking in connection with the improvement."
Although the court held that the statute allowed the taking of more property than needed, it wanted to hear more about the public use question. Instead of tackling the issue itself, however, the court sent it back to the lower court "to allow the district court to address the issue in the first instance." Slip op. at 10. The court framed the issue as a Kelo problem, where the government's asserted public interest was the saving of money:
Carlson's constitutional claim raises difficult questions without any clear answers in applicable precedent. The core question is whether UDOT’s condemnation of excess property satisfies the “public use” element of the federal and state constitutions. At the federal level, that question has been cued up but not conclusively resolved by the U.S. Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005). Kelo reaffirmed the independent vitality of the “public use” element of the federal Takings Clause and marked its outer boundaries. See id. at 477–78 (explaining that an underlying public purpose is a necessary element of the analysis, holding that a municipality’s economic development purpose was sufficient, but noting that a municipality would be “forbidden from taking . . . land for the purpose of conferring a private benefit on a particular private party”). But while Kelo declared that purely private takings as well as takings with only a “mere pretext of a public purpose” were unconstitutional, id. at 478, it ultimately “eschewed rigid formulas” for assessing public use and instead “afford[ed] legislatures broad latitude in deter-mining what public needs justify the use of the takings power,” id. at 483. Our assessment of the case under this federal standard could certainly benefit from further consideration on remand.The state-law variant on the “public use” question is even more wide open. In cases involving state takings provisions apparently comparable to Utah’s, the courts have adopted a wide range of standards of “public use.” In some states, the courts have rejected the Kelo standard on the ground that the purpose or original meaning of their state Takings Clauses is incompatible with the notion that “an economic benefit to the government and community, standing alone, does not satisfy the public-use requirement.” Other state courts have embraced a standard similar to Kelo’s as consistent with their state constitutional provisions, while still others have adopted a variation on Kelo.We are reluctant to venture a view on this difficult question without the benefit of a district court decision after further factual development of the record. A remand is appropriate for that reason alone.
Id. at 11-12 (footnotes omitted). The court also noted that the DOT had not "clearly articulated" why it was taking extra land, except that it wanted to avoid litigating the severance damage issue (really, what more could it say?). A remand would give it the chance to do so.
On remand, we expect the DOT to take this big hint from the court and to set out its reasons nunc pro tunc, and paper the file in such a way to maximize the chance of the court upholding the excess taking if and when it comes back.
More on the decision here, from the Salt Lake Tribune.
Stay tuned, this one isn't over.
Utah Dep't of Transportation v. Carlson, No. 20120414 (Utah June 24, 2014)
