Cannon v. State

807 A.2d 556, 55 ERC (BNA) 1504, 2002 Del. LEXIS 557, 2002 WL 2008144

• Court: Supreme Court of Delaware
• Decided: August 28, 2002
• Docket: 418, 2001
• Status: Published

Opinions

WALSH, Justice for the Majority.

In this interlocutory appeal from a Superior Court order of possession, we address the scope of the condemnation powers delegated to the Department of Transportation of the State of Delaware (“DelDOT”). The appellants/defendants below are the owners of 6.5 acres of land in Sussex County that DelDOT seeks to condemn in order to create a wetlands mitigation site. The wetlands mitigation is required as a condition of the U.S. Army Corps of Engineers’ permit to fill other wetlands in connection with the Route 54 highway reconstruction project in Sussex County. After a contested condemnation hearing, the Superior Court granted DelDOT’s request for possession. The property owners have appealed, arguing that DelDOT lacks the authority to condemn land for wetlands mitigation, and, even if it has such authority, it acted unreasonably by failing to explore alternative sites. We agree with the trial court that DelDOT’s statutory grant of authority to condemn land extends to wetlands mitigation, and that it acted within that authority in this case.

I.

Appellants Everett and Allie Cannon (“the Cannons”) own a coastal farm on the Little Assawoman Bay that is adjacent to the current Route 54 in Sussex County, Delaware. Route 54 serves as an essential hurricane evacuation route for the seashore area but is often rendered inaccessible due to flooding. In recognition of this problem, DelDOT commenced a study in 1992 to determine what improvements should be made to the road. Seven design alternatives for the Route 54 project were considered. The study evaluated each alternative design for its social, economic, and environmental impact on the surrounding area, as required by the National Environmental Policy Act. With the exception of the first alternative, to do nothing, all of the designs, to varying extents, would necessarily interfere with the Cannons’ property and require the filling of wetlands. Eventually, after public notice and debate, DelDOT chose a design featuring an elevated viaduct and a six foot elevated fill berm to access it. The viaduct will extend across approximately 2,460 feet of the Cannons’ land and cross federally protected wetlands.

The Cannons did not dispute DelDOT’s plan to condemn the portion of their land necessary for actual highway improvements. The Cannons did, however, refuse to surrender any of their land to accommodate wetlands mitigation necessitated by the project. The Route 54 project will require the filling of 1.87 acres of wetlands and removal of .955 acres of fill for temporary and shading of wetlands. Acting under the authority delegated to it by the Clean Water Act, the U.S. Army Corps of Engineers (“the Corps”) requires a permit to fill wetlands and maintains a “no net loss” policy, which requires wetlands mitigation to accompany any wetland filling operation. 33 U.S.C. § 1344; 33 C.F.R. § 320.4(r). This means, essentially, that DelDOT must create wetlands to replace those lost by the Route 54 improvements. Thus, DelDOT sought condemnation of 6.5 acres of the Cannons’ property in order to create the necessary wetlands.

DelDOT cannot build the Route 54 project without a fill permit from the Corps, and the Corps will not issue a permit without acceptable wetlands mitigation. By virtue of a memorandum of understanding between the Corps and the Environmental Protection Agency, the Corps operates under a protocol of sequential review of possible mitigation sites. Under the protocol, the most desirable site is one that is both on-site and in-kind. If the most preferred mitigation site is not practical or feasible, the Corps will consider alternatives in descending order of preference: off-site and in-kind, on-site and out-of-kind, and off-site and out-of-kind. The Cannons’ land is both on-site and in-kind, because it is adjacent to the impact area and amenable to the creation of tidal wetlands. In short, the Cannons’ wetlands essentially replicate the wetlands to be filled in constructing the road.

DelDOT hired an expert wetlands consultant, Edward Launay, to develop a wetlands mitigation plan that would be acceptable to the Corps. Based on Launay’s recommendation, DelDOT offered only one mitigation site to the Corps, the Cannons’ property. After the Cannons expressed their opposition to having their land used for wetlands mitigation, DelDOT investigated the feasibility of off-site mitigation sites. Launay reviewed all DelDOT-owned land in Sussex County and concluded that none would be acceptable to the Corps as suitable for the creation of tidal wetlands. The Cannons concede that their land is the best ecological site, but argue that other, less desirable sites could be acceptable to the Corps. Despite the Cán-nons’ opposition, the Corps granted Del-DOT’s fill permit and DelDOT is prepared to go forward with construction of the Route 54 project. According to the Corps’ permit, however, construction cannot begin until DelDOT actually acquires the Cannon property. Although wetlands mitigation is needed before construction can begin, once the highway is built it will play no role in the function of the roadway.

II.

Our standard and scope of review of the Superior Court’s interpretation of the condemnation statute is de novo. Public Water Supply Co. v. DiPasquale, 735 A.2d 378, 382-83 (Del.1999).

The Cannons first argue that DelDOT lacks statutory authority to condemn private land for wetlands mitigation purposes. Although 17 Del. C. § 132(c) does not contain language authorizing DelDOT to condemn land specifically for “wetlands mitigation,” DelDOT asserts that the grant of condemnation power is broad enough to encompass this purpose. The Superior Court agreed, holding that the taking of the Cannons’ land is “necessary for a proper, public purpose,” because, as a practical matter, DelDOT cannot make the improvements to Route 54 without providing wetlands mitigation.

We agree with the Superior Court that 17 Del. C. § 132 grants Del-DOT the authority to condemn land for wetlands mitigation, if necessary to advance the underlying purpose of construction and maintenance of the State’s roadways. It is beyond dispute that as a sovereign governmental entity, the State of Delaware retains the power of eminent domain and that it may delegate that power to agencies charged with furthering some public good. Thomison v. Hillcrest Athletic Ass’n., 5 A.2d 236, 238 (Del.Super.1939). The statute granting DelDOT the power of eminent domain provides that, in furtherance of the construction of a comprehensive and permanent system of state highways, DelDOT may: “[ajcquire by condemnation or otherwise any land, easement, franchise, material or property, which, in the judgment of the Department, shall be necessary therefor....” 17 Del. C. § 132(c)(4). The General Assembly further granted Del-DOT the power to do “whatever is incidental and germane to the scope of the duties and powers conferred on it by law.” 17 Del. C. § 132(d).

Statutes that vest the power of eminent domain in an agency must be strictly construed, however, because, by their operative nature, they subjugate the rights of private property owners to the greater public need. State ex rel. Sharp v. 0.6878 Acres of Land, 105 A.2d 205, 206 (Del.Super.1954). Despite the strict construction we must accord 17 Del. C. § 132, our overriding goal is to determine the intent of the legislature. In this vein, we note that the Superior Court has construed the statute to allow DelDOT to condemn property for the purpose of building a toll plaza and an administrative building, which the court deemed “necessary for the construction and use” of a state highway. State v. M. Madic, Inc., C.A. Nos. 96C-11-192, 96C-11-193, 96C-11-196, 96C-11-197, slip. op. 17-19, Quillen, J. (Del.Super.Jan. 24, 1997). Ultimately, the court reasoned, the property owners’ proffered interpretation of the statute would “hamstring DelDOT’s efforts to construct any state roadway, and Title 17 is not so restrictive.” Id.

Courts in other states have also concluded that environmental mitigation is a practical necessity for public construction projects and have allowed state agencies to condemn private land for wetlands mitigation. See State v. Trap Rock Industries, Inc., 338 N.J.Super. 92, 768 A.2d 227, 231 (2001) (holding that, “[although mitigation is strictly environmental in its nature, the highway could not have been constructed without [it] ... [therefore, the property at issue was realistically needed for transportation purposes”); Dare County Board of Education v. Sakaria, 118 N.C.App. 609, 456 S.E.2d 842, 845-46 (1995) (holding that county board of education was statutorily authorized to condemn land for use as wetlands mitigation, as necessary to construction of new athletic facilities).

The same rationale is applicable here. Were the Cannons’ very narrow construction of the statute to be accepted, DelDOT would be substantially hampered in its efforts to fulfill its statutory mandate to establish a comprehensive system of state highways. 17 Del. C. § 132(a). Whenever a proposed roadway interfered with federally protected wetlands, and the property owner refused to sell, DelDOT would be forced to abandon the project, no matter how “necessary” and compelling would be the public need. We do not believe that the General Assembly, in conferring upon DelDOT a broad grant of condemnation power, intended that such authority be exercised only with the consent of adjacent landowners, where wetlands mitigation is required by federal law.

III.

Having determined that DelDOT has the statutory authority to condemn land for wetlands mitigation, we address the Cannons’ claim that, in this instance, DelDOT abused that authority. First, a discussion of the standard of review applicable to the Superior Court’s decision, and DelDOT’s decision, is necessary. The General Assembly has granted DelDOT the authority to condemn private land for public use, providing that DelDOT may “[a]cquire by condemnation or otherwise any land, easement, franchise, material or property, which, in the judgment of the Department, shall be necessary therefor.... ” 17 Del. C. § 132(c)(4) (emphasis supplied). There is little question that DelDOT’s condemnation of the Cannons’ property was for a public use, i.e., to enable the State to improve a hurricane evacuation route. The question raised by the Cannons is, was the taking of their wetlands, in particular, necessary? The statute makes clear that DelDOT is empowered to make that determination in the first instance. Once DelDOT determines a particular property is necessary to the fulfillment of its duty to maintain the State’s highways, the courts must accord broad deference to that decision.

When the General Assembly delegates the right of eminent domain to a governmental agency for a public purpose, as it has to DelDOT, it may also delegate to such agency the power of determining what property and how much property is necessary for the purpose. State ex rel. Sharp v. 0.62033 Acres of Land, 110 A.2d 1 (Del.Super.1954), aff'd, 112 A.2d 857 (Del.1955). The only limit to that power is that it may not be exercised “thoughtlessly or arbitrarily.” 0.24148, 0.23831 & 0.12277 Acres of Land v. State ex rel. Smith, 145 A.2d 388 (Del.1958); see also Public Water Supply Co. v. DiPasquale, 735 A.2d 378, 383 n. 9 (Del.1999) (noting that expert agency determinations of fact, applied to settled law, are reviewed for an abuse of discretion). Indeed, the Superior Court Civil Rules recognize that deference is owed to DelDOT’s condemnation determinations. Rule 71.1, governing condemnation proceedings, provides that “[i]n all such condemnation proceedings the burden shall be upon the property owner to overcome the presumption of regularity and the prima facie case of necessity for public use presented by the institution of such proceeding.” Super. Ct. Civ. R. 71.1 (emphasis supplied).

The power of eminent domain belongs exclusively to the legislative branch. See Joslin Mfg. Co. v. City of Providence, 262 U.S. 668, 678-79, 43 S.Ct. 684, 67 L.Ed. 1167 (1923) (stating “[t]hat the necessity and expediency of taking property for public use is a legislative and not a judicial question is not open to discussion”). The General Assembly’s exercise of that power through delegation to an administrative agency may be reviewed by the courts only to ensure that the power is not wielded punitively or arbitrarily. Our standard of review “mirrors that of the Superior Court.” Public Water Supply Co. v. DiPasquale, 735 A.2d 378, 380 (Del.1999). In this case, the Superior Court accorded DelDOT the proper deference when it reviewed its necessity determination for “fraud, bad faith, or gross abuse of discretion.” State ex rel. Sharp v. 0.62033 Acres of Land, 110 A.2d 1, 6 (Del.Super.1954), aff'd, 112 A.2d 857 (Del.1955). Accordingly, we review DelDOT’s determination that the Cannons’ land is necessary for the Route 54 highway project for fraud, bad faith, or abuse of discretion.

While there is no evidence that DelDOT acted fraudulently or in bad faith, the Cannons contend that DelDOT acted unreasonably and abused its discretion in selecting their property as necessary for wetlands mitigation without first exploring if there were any State-owned lands that would suffice. DelDOT maintains that, because the Cannons’ land is both on-site and in-kind, the Corps would not have accepted anything less. Indeed, the Corps would not consider an alternative mitigation site unless the Cannons’ land was not “practical or feasible.” Given our determination that DelDOT has the authority to acquire the Cannons’ land, it would be unlikely that the Corps would deem it impractical. Furthermore, DelDOT did investigate alternative mitigation sites, but found that DelDOT did not own any land in the vicinity that would be suitable to wetlands mitigation. We do not believe that DelDOT was obligated to conduct an inventory of all State-owned lands. It is enough that DelDOT hired an expert to determine the best mitigation site available, researched the feasibility of alternative mitigation sites, and attempted to negotiate with the Cannons before resorting to condemnation.

The fact that DelDOT focused on the Cannons’ property as the first choice for wetland’s mitigation is understandable because it was “on-site/in-kind” and readily acceptable to the Corps. The dissenters complain that the choice was made before exploration of other alternatives. But when DelDOT’s taking was challenged in the Superior Court, the agency was able to demonstrate that no other site in its available inventory achieved the same level of acceptability. Importantly, DelDOT was able to justify the necessity of the taking when required to do so in the Superior Court and we agree with the Superior Court’s ruling that the process followed by DelDOT was “rational and logical.”¹

DelDOT has been charged by the General Assembly with doing whatever is necessary to ensure that the citizens of this state have suitable highways upon which to travel. There is no question that DelDOT had a “proper public purpose” to pursue the Route 54 project. See Wilmington Parking Authority v. Land with Improvements, Situate in the City of Wilmington, 521 A.2d 227 (Del.1986). A hurricane evacuation route that routinely floods is clearly a matter of public concern and its improvement is in the best interest of the public. Although there may be more that DelDOT could have done to avoid condemning the Cannons’ land for wetlands mitigation, we cannot say that it acted unreasonably in choosing the site that gave it the greatest chance of obtaining the permit from the Corps which was required to begin construction of the project.

Accordingly, we affirm.

1 . In its bench ruling, the Superior Court noted that "as a practical matter, that if DelDOT had even gone and looked at [the other] properties, they would not have ranked as high as the Cannons’ property in terms of being suitable for wetlands mitigation.” The court commented that it was satisfied, based on the testimony of DelDOT’s environmental consultant, that the agency acted "in a very fair, rational and logical manner, and, second, Mr. Cannon had made it pretty clear that he didn't want any of his lands to be used for wetlands, and based on the testimony that I heard, he never changed his mind, and if he did change his mind, he never communicated that to DelDOT.”