Making a Necessity Challenge

This Article is written by Owners’ Counsel of America for general informational purposes only.  It is intended to assist property owners who believe the condemning authority lacks a valid need or necessity to take property by eminent domain. This Article is not to be viewed as providing legal advice or to be considered as a substitute for consulting with an experienced eminent domain, takings or property rights lawyer on the matters covered herein.  

When property is targeted for an eminent domain taking, the owner will sometimes want to show that the taking is not necessary or needed. After all, shouldn’t the government be required to prove that it has a pressing need to take private property rather then simply a desire to do so. Unfortunately, the law on how a court might view and decide a necessity challenge differs from state to state, and it is not always the case that an owner prevails, even if the evidence shows (1) a lack of need to take the owner’s property and/or (2) the availability of  other property that would satisfy the government’s project needs. Read more to see how the issue of necessity may be addressed in an eminent domain taking case.

Raising a Necessity Challenge

While constitutional provisions generally require that an eminent domain taking be (1) for a public use (2) upon the payment of just compensation, by case law and state statutes some jurisdictions also allow the issue of “need” to be raised as an additional defense to the taking.

Raising a “need” or “necessity” challenge in an eminent domain case can mean different things depending upon the facts of the case. However, below are three of the most frequent reasons why a property owner might seek to make such an assertion:

1. There is no need to take the property because there is something improper or wrong with the project requiring that it be taken. For instance, the project lacks a public purpose, or the project doesn’t make sense from a construction standpoint, or the project lacks funding, or the project may never be built, etc.
2. There is no need to take the property because the decision by the condemning body to take it was based on improper factors and considerations. This is sometimes called a “pre-textual” taking. See Featured Article, “Abusive Condemnation Actions.” 
3. There is no need to take the property because there is other property available that is more suitable for the project, or that could be acquired at  less cost, or that would not cause the damage that the current taking will cause, etc.

The Standard of Bad Faith and/or Fraud

Assuming a necessity claim can lawfully be raised in defense of a taking, and assuming there are sufficient facts to support such a claim, it is important to understand that many courts may still require an additional showing by the owner. In many jurisdictions an owner must prove that the government’s decision to take the property or its’ claim that the property is needed for the project was made in “bad faith,” “fraudulently,” or based on “improper motives.”

So what do these terms mean? The best way to illustrate their meaning is by providing a few examples of situations where courts have found bad faith or improper motives on the part of the condemning body based on the asserted facts: 

• A special district seeks to condemn private property claiming that it is needed for a public drainage project. But the facts demonstrate that the property is being taken for private pecuniary reasons, i.e. to make other property owned by the district available, so that it can then be sold to a third party at a substantial profit to the district.
• A municipality seeks to condemn property owned by another municipality stating that it is needed for a buffer and open space area. But the facts show that the real reason behind the taking is a competitive one, i.e. the condemning municipality wants to prevent the subject property from being put to a lucrative commercial use by the other municipality. 
• An urban renewal authority seeks to condemn much more of the owner’s property than it actually needs for redevelopment purposes because in a depressed or down real estate market it can acquire the property very cheaply.
• A condemnor seeks to condemn improved property to construct an overhead power line that will divide the property in two causing significant damage. However, across the road lies completely vacant and undeveloped land that is even more suitable for the project’s needs, and that has been offered for purchase to the condemnor at a greatly reduced price.

The Court’s Deference Standard

Many courts will state that they are not in the business of second-guessing a condemning authority when it has made a necessity determination, as part of exercising its power of eminent domain. As a result, courts will often state that they must “defer” to the condemnor’s decision on this key issue—meaning they must accept it as true.

Nevertheless, in situations where the facts indicate otherwise, a necessity challenge can be a viable defense. If you believe a condemning body does not “need” your property and you have the facts to support your claim, reach out to an OCA lawyer today to discuss your case.