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I. THE ROLE OF NECESSITY IN EMINENT DOMAIN ....................243
A. Unnecessary Necessity: The Cases of Pequonnock and Poletown ....................246
B. The Aftermath of KeIo v. City of New London: Has Public Outrage Prompted Meaningful Eminent Domain Reform? ........ 253
II. RUBBER STAMPS AND HIGH HURDLES ................. 256
A. Judicial Nonreviewability Invites Government Abuse ....................256
B. Strict Scrutiny Review Would Unduly Interfere with Legislative Will ..................... 261
III. TOWARD A MODEST REVIVAL OF NECESSITY IN EMINENT DOMAIN ....................267
A. An Arbitrary and Capricious Standard is Too Lax ....................268
B. The Less Drastic Means Test: Measured Judicial Review ....................270
CONCLUSION ....................278
Necessity is not a word to be taken lightly. The necessity defense in criminal law can excuse most criminal acts.1 Manifest necessity permits a court to declare a mistrial in a criminal proceeding.2 The business necessity defense permits employers to retain a discriminatory hiring policy.3 Military necessity condones armed conflict and the destruction of enemy property in wartime.4 Dictionaries use words like indispensable, unavoidable, and imperative to define it.5
Few doctrines have relied on the necessity concept longer than eminent domain. In 1625, Hugo Grotius, the Dutch jurist credited with coining the phrase "eminent domain," described "extreme necessity" as one condition under which the State may alienate or destroy private property for a public purpose.6 Necessity doctrine has influenced American land use since colonial times. As early as 1700, a Pennsylvania law required that "no such road shall be carried through any man's improved lands, but where there is a necessity for the same."7 The concept appeared periodically in state court cases throughout the nineteenth century and remains present today.
The necessity doctrine is a fundamentally simple idea- a government entity may only take property via eminent domain when it is necessary to further a proposed public use.8 The burden of proof for establishing the necessity of the taking rests on the condemning authority.9 The landowner can present her own supporting evidence. If a court finds lack of necessity, it can prevent the proposed taking.10
Eminent domain represents one of the government's "most drastic non-penal incursions" into individual rights.11 "It requires that [private] owners relinquish their property without their consent," pitting private interests against a public good.12 Common sense would suggest that a municipality must work...