Dear City Attorney,
You have asked me to research the issues raised by language inserted into our eminent domain law in 2006, as it appears such issues have been raised by respondents in the above- referenced litigation concerning a condemnation by your City. The purpose of the condemnation is to obtain an easement for electric lines. The Respondents’ Answer to Petition for Condemnation indicates that they will challenge the necessity of the taking, relying on language contained in the 2006 amendment of the eminent domain statute.
The specific statutory language at issue follows:
(2) “Public use” shall not include either private use or benefit, or the indirect public benefits resulting from private economic development and private commercial enterprise, including increased tax revenue and increased employment opportunity, except as follows:
(B) The acquisition of any interest in land necessary to the function of a public or private utility, a governmental or quasi-governmental utility, a common carrier, or any entity authorized to exercise the power of eminent domain under title 65;
T.C.A. § 29-17-102 (emphasis added). It is the clause “necessary to the function of” a public utility which is the focus of my research.
Well before this language was added to the Tennessee eminent domain law, our state courts determined that the necessity of a taking is a legislative decision:
The determination by a condemning authority of the necessity for the taking is not a question for resolution by the judiciary and, absent a clear and palpable abuse of power, or fraudulent, arbitrary or capricious action, it is conclusive upon the courts. Duck River Elec. Membership Corp. V. City of Manchester, 529 S.W.2d 202, 204 (Tenn. 1975).
[W]here...a taking is for a public use, the only remaining restriction on the sovereign power is to pay the fair and reasonable value of the property taken, generally denominated “just compensation.”... But all other incidents of the taking are political questions, for the determination of the sovereign, and not judicial questions, for the determination of the courts. Selecting the property to be taken, as contradistinguished from similar property in the same locality, determining its suitableness for the use to which it is proposed to put it [sic], as well as deciding the quantity required, are all political questions, which inhere in and constitute the chief value of the power to take. This power would be a vain and empty thing, if the owner could contest the advisability of taking his property rather than his neighbor’s, or if he could interpose as a defense to the taking that other property could be found which suit the purposes better, or that he, the owner, was of the opinion and could prove that the public needed more or less than the quantity proposed to be taken. The power to take would be of small value, if the thing to be taken, in its quantity, quality, and locality, could be determined by another and adverse interest. Southern Ry. Co. V. City of Memphis, 148 S.W. 662 (Tenn. 1912); cited in City of Maryville v. Edmondson, 931 S.W.2d 932, 934 (Tenn. App. 1996)(emphasis added).
It does not appear that adding the language “necessary to the function of a public utility” to the statute as a definition of “public use” will now change the nature of eminent domain proceedings. Tennessee courts have consistently held that the question of the necessity of a taking is not a judicial question, and further should not be submitted to a jury. First Utility District of Knox County v. Jarnigan-Bodden, 40 S.W.3d 60 (Tenn. App. 2000), perm. app. denied (March 5, 2001). Although this aspect of eminent domain law is well-settled and was understood at the time the statute was amended, the 2006 amendment did not attempt to alter the nature of the proceedings or to change the way condemnation cases are heard. There was no amendment of the law providing that jury hearings would be afforded on the public use issue, and no qualification of the “necessary” clause to indicate that a court finding of such is required in order to proceed in a condemnation action. Rather, the law requires that takings be for “a legitimate public use in accordance with the fifth and fourteenth amendments to the United States Constitution, the Constitution of Tennessee, Art. I, § 21,” and all the prior court opinions on the issue of necessity in this state were made under those constitutional provisions. It is therefore very likely that the amendment in 2006 has no impact on the determination of necessity.
The United States Supreme Court first observed that when a power is expressly given to the government by the Constitution, “the degree of its necessity is a question of legislative discretion, not of judicial cognisance.” McCulloch v. Maryland, 17 U.S. 316, 4 L.Ed. 579 (1819). The McCulloch case concerned the power of Congress to incorporate a bank, but the reasoning is applicable to all government functions of constitutional powers:
Congress is authorized to pass all laws ‘necessary and proper’ to carry into execution the powers conferred on it. These words, ‘necessary and proper,’ in such an instrument, are probably to be considered as synonymous. Necessarily, powers must here intend such powers as are suitable and fitted to the object; such as are best and most useful in relation to the end proposed. If this be not so, and if congress could use no means but such as were absolutely indispensable to the existence of granted power, the government would hardly exist; at least, it would be wholly inadequate to the purposes of its formation. 17 U.S. at 324-5.
Since the amendment of the eminent domain law in 2006, there have been no cases in Tennessee examining the “necessity,” or even the “public use” language. There has been no indication that the courts will now handle such cases differently, by applying a different or higher burden of proof from the condemning authority. There is no reason to conclude that the issue of “necessity” has now become one for judicial determination.
In the absence of a recent Tennessee case, post dating the amendment of the statute, there are numerous cases from other states considering the issue which are helpful.
The Washington state eminent domain statute in 1968 contained the following language: “Whenever it shall become necessary for the city to take or damage private property for....any..public purpose...” RCW 35.24.310 (1968). The Washington Supreme Court interpreted this language as leaving the decision concerning “necessity” to the legislative body:
[Q]uestions concerning whether a particular acquisition is necessary to carry out a proposed public use are legislative. A declaration of necessity by the proper municipal authority, such as petitioner in the instant case, in conclusive in the absence of proof of actual fraud or such arbitrary and capricious conduct as would constitute constructive fraud. City of Des Moines v. Hemenway, 437 P.2d 171, 176-177 (Wash. 1968) (citations omitted).
The Michigan Constitution actually requires a determination of “necessity” for a taking: “Private property shall not be taken by the public nor by any corporation for public use, without the necessity therefor being first determined and just compensation therefor being first made...” Michigan Constitution, Art. 13, Section 1. State statutes in 1930 provided that the question of necessity be submitted to a jury. In the case City of Kalamazoo v. Balkema, 233 N.W. 325 (Mich. 1930), the state Supreme Court declined to overturn a jury verdict that the taking of property to expand a city park near the business district was necessary. The landowner challenged the definition of “necessity” used by the trail court judge. The Michigan Supreme Court relied upon Chief Justice Marshall’s words in the McCulloch v. Maryland case, supra:
Is it true that this is the sense in which the word ‘necessary’ is always used? Does it always import an absolute physical necessity, so strong, that one thing, to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another.
Thus the definition of “necessary”applied in Michigan became those words written by Chief Justice Marshall.
The Virginia Constitution contains no right to a hearing on the issue of necessity of a taking, and follows most state constitutions in granting review on the issue of compensation only. State legislation imposes limitations on condemnations for certain enumerated public purposes, and provides that necessity is established where it is “declared by resolution of the governing body following a public hearing.” Va. Code § 15.1-237. It was under this law that the question of “necessity” was raised in the case Hamer v. School Bd. of City of Chesapeake, 393 S.E.2d 623 (Va.1990). The Court rejected the plaintiff’s argument that the taking was not necessary:
We, as well as the trail court, should have been spared this needless exercise. The question whether a taking is for a public purpose is a judicial question, reviewable by the courts, but the necessity or expediency of the condemnor’s project, when its public purpose has been established, is a legislative question....The power of eminent domain is an essential attribute of sovereignty which, in our system, inheres in the General Assembly. The only constitutional limitations imposed upon the power of eminent domain are contained in the just compensation clause, Va. Cont. Art.I, §II. Thus, there is no constitutional right to a hearing on the issue of necessity. Hamer, at 625-626 (emphasis added).
New York has similar constitutional provisions, limiting eminent domain only with the requirements that just compensation be paid, due process followed, and that the taking be for a public use. In Bronx Chamber of Commerce v. Fullen, 21 N.Y.S.2d 474 (1940), the New York Supreme Court states:
Eminent domain is one of the sovereign powers inherent in the state as the sovereign to take private property for public use....The State constitution does not create the power but recognizes its existence and merely regulates its use by designating limitations within which it may and beyond which it cannot be used. The power is exerted through the legislative branch alone, within those constitutional limitations and completely independent of the other branches, may proceed to determine the necessity and prescribe the method and extent of the taking...As the legislative branch alone may determine the necessity and prescribe the method and extent of the taking, it may also delegate the duty of determining necessity or expediency in the acquisition of private property to a tribunal of its creation or choice and the opinion arrived at and decision made are political and judicial. Whether the use for which the property is authorized to be taken is a public use is a judicial question, but the question of the necessity of the taking for public use is exclusively a legislative one and the legislature has the right to designate officers, bodies or tribunals to determine exigency or necessity. The decision of the legislature or of its instrumentality is conclusive. Bronx Chamber at 480 (emphasis added).
In the case at hand, I note that the Answer to Petition filed by the Respondents claims that the taking is not “necessary to the function” of the City’s utility, without providing any averments of fact or grounds for such allegation. A similar answer in an Indiana case was struck as being an invalid objection, and not a permitted pleading. In the Indiana Court of Appeals case State v. Collom, 720 N.E.2d 737 (Ind.App. 1999), the respondent filed an answer generally denying the State’s averments of necessity. The State moved to overrule, or strike the answer and the trial court refused, and went forward with evidentiary hearings. The Court of Appeals overturned the lower court, ruling that the general denial is not permitted under the eminent domain statute, and that the trail court’s examination of the issue was improper:
It has long been established that the necessity of taking property for public use is purely a legislative question and not a proper subject for judicial review; where the intended use is public, this question may be determined by such agency and in such manner as the legislature may designate. Thus, a court may not inquire into the administrative determination of the propriety, reasonableness, or necessity for the taking of property by eminent domain by a proper authority, except for fraud, or where the proceeding is a subterfuge for taking property for private use. As our supreme court has explained:
The courts have the right to determine the legal authority and right under which the power of eminent domain is exercised. This does not mean, however, that the courts may assume the administrative act of determining the necessity or reasonableness of the decision to appropriate and take the land. To us, this appears to be a matter for determination of the legislature or the corporate body to whom the legislature has delegated such a decision. Collom at 740, citing Cemetery Co. v. Warren School Twp. of Marion County, 139 N.E.2d 538, 545 (Ind. 1957)(emphasis in original).
The reasoning in the Indiana case leads me to wonder if a motion to strike the Respondents’ Answer to Petition may be warranted. Simple denials are permitted in pleadings in Tennessee, but not when those denials are also asserted as “affirmative defenses.” Rule 8.03 of the Tennessee Rules of Civil Procedure requires that affirmative defenses contain facts, and the Respondents’ Answer contains no facts in support of their position that the taking is not necessary.
There are numerous other cases from numerous jurisdictions examining the operation of the term “necessity” as it relates to eminent domain proceedings. In all that I have reviewed, the courts held that the determination of the necessity of a taking is a legislative matter, which will not be disturbed absent a finding of fraud or abuse of power.
You have also forwarded the City’s resolution passed in 2003 concerning the first easement obtained from the Respondents for the installation of sewer, water and gas lines to serve the industrial park. The resolution contains the statement “the acquisition of utility easements across the properties of Mr. And Mrs. X ...are necessary for the providing of said utility services to the Industrial Park.” This follows the statement that the industrial park is “essential to the further economic development of the City...” It is clear that the City’s governing body has made the determination that this taking is necessary, for both the industrial park, and the provision of utility service to the park. Interestingly, the amendment to the eminent domain statute in 2006 specifically provides that “public use” includes “the acquisition of property by a county, city, or town for an industrial park...” T.C.A. § 29-17-102. As the easement sought in the immediate case is for the purpose of providing utility service to the industrial park, it is unfathomable that the taking is not necessary. One cannot have industry without utilities.
I hope this information is helpful as you move forward in the condemnation case. Please let me know if you need any further assistance in this matter.
Melissa A. Ashburn