The Two-Edged Public Necessity Sword at LAX


 One of the pillars of eminent domain law is that the courts do not inquire into a condemnor’s determination of necessity for eminent domain takings. The U.S. Supreme Court first reasoned that private-to-private takings can be justified on grounds of absolute public necessity. It said that it would allow such takings (as in Clark v. Nash and Strickley v. Highland Boy Gold Mining Co.) because otherwise the “foundations of civilization” could not be laid. We kid you not. For a fuller discussion of this point, see 33 Pepperdine Law Review at 350-352. 

But a few years later, in Bragg v. Weaver the court announced that necessity is not a part of federal eminent domain law. In other words, when the owner challenges a taking of his property, he is told that taking it and devoting it to the “public purpose” du jour is justified as a matter of great necessity, but when he wants to challenge that necessity, he is told that necessity is no part of federal eminent domain law.  

In the state courts, the handling of necessity varies. It ranges from a relatively benign rule in Florida whose courts do allow some inquiries into necessity, all the way to California whose supreme court ruled in People v. Chevalier that in spite of the fact that the requirement of necessity is imposed by statute, necessity for a taking is altogether non-justiciable, not even where the resolution of necessity is procured by fraud, bad faith and abuse of discretion. The California court never retreated from that extremist position, but in 1976 the California legislature changed the rule to hold that the determination of necessity is not conclusive where the resolution of necessity is procured through “gross abuse of discretion” or bribery. Even then, the resolution is not void, but only subject to judicial review.

In most other jurisdictions necessity may be inquired into if the condemnee can demonstrate that the decision to take by eminent domain is the product of bad faith on the part of the condemnor. 

We were inspired to reflect on all this stuff by the Los Angeles Times editorial of February 22, 2010 (Redefining Safety at LAX), dealing with the necessity for increasing the separation between the two north runways at LAX. It seems that the folks at the FAA are concerned with the safety of these runways. “The Federal Aviation Administration had been demanding for decades that the airport address the runways’ design flaws, and five independent studies on airport safety concluded that they were too close together for comfort.”  What does the government do in a case like that when faced with the ire of the NIMBY folks whose homes would be impacted by this project? Find another study. And that’s just what the LAX folks did. They found a NASA study performed by an “academic panel” and – mirabile dictu! – that study concludes that things aren’t so bad because the probability of planes colliding is small.

Far be it from us to challenge the wisdom of the NASA folks, but it seems to us that were such an extremely unlikely collision to occur, NASA’s wisdom would be cold comfort to the passengers in question and to their families. Even the NASA study concedes that increasing runway separation by 340 feet would lower the risk by 55%. For once, we find ourselves in agreement with the Times which concludes:  

“We’re as puzzled as anybody about how airport experts could come to such widely differing conclusions on safety, and we’re less convinced about the necessity of separation [of the two north runways] than we were two years ago. But we’re certain that the Board of Airport Commissioners should not allow this perplexing study to be the last word on the north airfield and its troubles.”

 So what we have here is a situation in which LAX could go either way, with both ways generating significan risks of future litigation over direct or inverse property takings. Will the city proceed with increasing the separation between the north runways? Will it exercise its power of eminent domain to take the homes that border on the north edge of that runway? Or will the city just increase the runway separation and take its chances on another inverse condemnation and nuisance lawsuit by LAX’s neighbors, as in the days of yore? See Greater Westchester Homeowners Association v. City of Los Angeles, 26 Cal.3d 86, 160 Cal.Rptr. 733 (1979).  

One way or the other, it seems reasonable that in the fullness of time this situation will produce gainful employment for local eminent domain and inverse condemnation lawyers.  

Stay tuned.

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