Necessity as a Check on State Eminent Domain Power

The Supreme Court decision of Kelo v. City of New London has provoked rigorous debate over the proper discretion given to government entities exercising powers of eminent domain. Rarely discussed is the equally important requirement of necessity. Necessity doctrine requires that a condemnor justify that the proposed taking is reasonably necessary for the stated purpose. Few attorneys and even fewer scholars have discussed the role of necessity doctrine in modern eminent domain practice. This manuscript traces the history and development of necessity, discusses cases where courts have preventing takings for lack of sufficient necessity, and suggests opportunities for practitioners to better challenge proceedings. This manuscript concludes that necessity should be revived from its largely dormant state and can play a meaningful role in curbing the worst excesses of eminent domain