Cannon v. Delaware, 2002 Del. LEXIS 557 (August 28, 2002).

Sara E. Allgood, 3L

Last August, the Delaware Supreme Court addressed the Delaware Department of Transportation’s authority to condemn land for a highway improvement project. The Cannons, landowners of the condemned land, challenged the Delaware Department of Transportation’s (DelDOT) decision to condemn the land for wetlands mitigation.

Background
Wetlands are very important to the overall control of water pollution, serve as breeding grounds for many species of fish and as a mechanism for flood control. Because of these functions, a party wishing to fill in and develop a wetland must apply to the Army Corps of Engineers for a permit pursuant to the Clean Water Act. Before issuing a permit, the Corps will analyze the purpose of the proposed project, measure its impact on wetlands and attempt to mitigate any loss of wetlands. To further the U.S. “no net loss” policy, lost wetland acreage can be “banked” in another wetland area to stabilize the total amount of wetland acreage.
In 1992, the DelDOT commenced a study addressing the problem of flooding along Route 54. This roadway serves as a primary route for hurricane evacuation, but at times, had been unavailable due to flooding. The study examined the problem along the evacuation route and proposed seven alternatives to remedy the flooding. The DelDOT settled on a plan to construct a viaduct across the Cannons’ land as well as federally protected wetlands.

Because a portion of the land needed to complete the selected alternative was wetlands, the DelDOT had to receive a permit from the Army Corps of Engineers in order to comply with the Clean Water Act. When considering whether to grant a permit to fill a wetland, the Corps reviews the possible sites offered for wetlands mitigation, preferring a mitigation site that is both “on-site” and “in-kind.” Because the Cannons’ land was adjacent to the wetlands needed for the highway improvement, it was the best ecological site, fitting both the on-site and in-kind requirements. The Cannons’ land was subsequently condemned by the DelDOT for wetland mitigation and highway improvement.

The Lawsuit
Upon the condemnation, the Cannons, who did not challenge the condemnation of their land for the actual highway improvement project, refused to surrender the land needed for the wetlands mitigation. The Cannons commenced suit claiming that the DelDOT lacked authority to condemn land for wetlands mitigation. First, the Cannons claimed that the language in the statute does not grant the Delaware DOT the authority to condemn land for wetlands mitigation. The Cannons also argued, in the alternative, that even if the DelDOT has the authority, it abused that authority by selecting the Cannon’s land.

The DelDOT’s Authority
The power of the government to condemn land derives from the Constitution. The Fifth Amendment states, “ . . . nor shall private property be taken for public use without just compensation.”1 The right of eminent domain entitles the government to condemn private property if the acquisition will benefit the public. The court states that this power belongs “exclusively” to the legislative branch.2 The state of Delaware, through its legislative branch, may confer the authority to condemn private land to an agency, such as the DelDOT.
The statute authorizing the DelDOT to condemn land states that the agency may: “acquire by condemnation or otherwise any land, easement, franchise, material or property, which in the judgment of the Department, shall be necessary therefore . . . ”3 Furthermore, the Delaware legislature granted the DelDOT the more general power to do “whatever is incidental and germane to the scope of duties and powers conferred on it by law.”4 The court recognized that these provisions must not be read too broadly because the power to condemn land for a public purpose greatly infringes on the important and fundamental right of a citizen to own private property. However, the court states that its “overriding goal” in deciding whether the DelDOT has the authority to condemn land for wetlands mitigation is to determine the legislature’s intent.5
In order to determine the intent, the court first focused on a Delaware Superior Court decision that the DelDOT’s condemnation of land to build a toll plaza and an administrative building was “necessary for the construction and use of a state highway.”6 The court also looked to other state court decisions that have concluded that environmental mitigation is a “practical necessity for the public construction projects.”7 The court reasoned that because public roadways are constructed and maintained for “public use,” in order to maximize the public’s benefit of these roadways, the DelDOT must also have the authority to operate in a flexible manner. Thus, the court held that the DelDOT has the authority to condemn land for the purpose of wetlands mitigation.

Abuse of Discretion
The court then examined the Cannons’ second claim that the DelDOT abused its authority to condemn land when choosing the Cannons’ property. Again, the court turned to the language of the statute, which reads that land may be condemned when, “in the judgment of the Department,” it is necessary. The court deferred to the DelDOT’s judgment as to what is necessary for the maintenance of the State’s highways. Because the DOT has been delegated the power to condemn property for the public good, it has also been given the power to determine what property should be condemned. The court states there is “little question” that improvements to a hurricane evacuation route serve the public.8 However, the court notes, the exercise of condemnation power must not be thoughtless or arbitrary.

The court reads a “presumption of regularity” in an agency’s determination that the condemned land is necessary for the public use, which is a difficult burden for the challenger to overcome. In order to defeat this presumption, the plaintiffs must prove that the agency acted fraudulently, in bad faith, or with an abuse of discretion. Finding no evidence of fraud, bad faith, or abuse, the court concludes that the agency acted reasonably in its choice to condemn the Cannons’ land for wetlands mitigation. The court determined that the decision to condemn the land was justified because the DelDOT’s decision to improve the highway for hurricane evacuation serves the public interest and the Cannon’s site provided the DelDOT with the best chance to receive a permit from the Corps.

Conclusion
The power of eminent domain as conferred upon an agency is not to be abused by selecting property and projects in an arbitrary manner. However, as the Supreme Court of Delaware indicated, a great amount of deference will be given to the agency in its decision to pursue a project for the public. This deference extends to federal requirements that states must meet in order to engage in certain actions.

ENDNOTES
1. U.S. Const. amend. 5.
2. Cannon v. Delaware, 2002 Del. LEXIS 557 at *11 (2002).
3. Id. at *7 (citing Del. Code Ann. tit. 17, §132(c)(4) (2002)).
4. Id. (citing Del. Code Ann. tit. 17, §132(d) (2002)).
5. Id. at *7.
6. Id. at *8 (referring to State v. M Madic, Inc., Nos. 96C-11-192, 96C-11-193, 96C-11-196, 96C-11-197, slip. op. 17-19 (Del. Super. Jan. 24, 1997)).
7. Id.
8. Id. at *10.