State, Department of Transportation & Public Facilities v. 2.072 Acres, More or Less

RABINOWITZ, Justice,

dissenting.

I am of the view that the court’s opinion has placed too high a burden upon the state to establish the validity of its condemnation. On this record I would reverse the superior court’s determination that the taking of the Hodges’ 2.072 acres is unnecessary and therefore barred.

In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551, 98 S.Ct. 1197, 1215-1216, 55 L.Ed.2d 460, 484 (1978) the Supreme Court observed:

Common sense also teaches us that the ‘detailed statement of alternatives’ cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man. Time and resources are simply too limited to hold that an impact statement fails because the agency failed to ferret out every possible alternative, regardless of how uncommon or unknown that alternative may have been at the time the project was approved.

Unfortunately, the common sense approach of Vermont Yankee appears to have been overlooked by the majority.1

If the court’s approach is carried out fully in future cases, a condemnee will be able to attack a condemnor’s determination of necessity simply by pointing out that the con-demnor failed to consider some alternative in detail.2 Once the condemnee does this, the condemnor will be under a burden to show either that it did consider the alternative or that the alternative did not have to be considered because it was completely infeasible. Regardless of which course of action it chooses to take, the condemnor will have to present substantial evidence in support of its assertions. Exhaustive cost estimates will be required to back up assertions about costs even in situations where common sense indicates that the alternative in question would involve substantial expense. Only after the condemnor has presented detailed evidence that it considered all possible alternatives or had good reasons for not doing so, will the condemnee be required to shoulder the burden of proving by clear and convincing evidence that the con-demnor’s evaluation of the alternatives and *470thus its determination of necessity was arbitrary. In light of the burden that the majority’s approach places on the condemn- or to establish the prima facie validity of its determination of necessity, only a few con-demnees may ever be forced to present evidence.3

In my opinion, the court’s opinion does not comport with the 1976 amendments to Alaska’s statutory provisions relating to declarations of taking.4 In amending the declaration of taking laws, the legislature clearly intended to (1) reverse the court’s decision in Arco Pipeline Co. v. 3.60 Acres, More or Less, 539 P.2d 64 (Alaska 1975),5 and (2) require condemnors to consider alternatives to proposed takings so that private harm could be minimized without sacrificing the interest of the public. There is no evidence, however, that the legislature intended its amendments to change the summary nature of a declaration of taking. The amendments do not require the use of any special investigatory procedures. I think it evident that the legislature intended that the condemnor would have primary responsibility for determining how far to go in investigating alternatives to a taking.

Under an approach which I believe to be more in accord with the legislature’s intent, I would require that a condemnor, in order to establish the prima facie validity of its determination of necessity, must show only that the taking is “reasonably requisite and proper for the accomplishment of the purpose for which it is sought,” City of Fairbanks v. Metro Co., 540 P.2d 1056, 1058 (Alaska 1975), and that it made an effort to investigate alternatives so as to minimize private injury without “impairing the integrity and function of the project and without adding unreasonable costs to the project.” State v. 0.644 Acres, More or Less, 613 P.2d 829, 832-33 (Alaska 1980). Once the con-demnor has made this requisite showing the burden shifts to the condemnee to demonstrate by clear and convincing evidence that the condemnor arbitrarily failed to investigate a promising alternative or that the condemnor’s conclusions about a particular alternative were irrational.

Applying this alternative analysis I conclude that the superior court erred in vacating the State’s declaration of taking. The State presented substantial evidence that the taking was reasonably requisite and proper for the road project, and the State’s witnesses testified that when it was discovered that the current project plan would necessitate the taking of land from the Hodges, the State planners considered the potential injury to the Hodges and ways of reducing it. The State concluded that the costs of acquiring land for lengthening the curve, of curving the relocated centerline so that the road would avoid the Soldotna Airport’s aircraft parking apron (or the cost of land for a relocation of the parking apron), and of relocating a half-mile stretch of telephone line were substantial and outweighed the private injury that would result from the taking. This decision was not irrational on its face even if the State did not develop and use detailed cost estimates in making the determination or supporting it in court.6

*471Once the prima facie validity of the State’s determination of necessity had been established, the burden shifted to the Hodges to present evidence that contradicted either the State’s claim that it had considered the potential injury to the Hodges and had investigated all reasonable alternatives, or the State’s conclusions concerning the feasibility of various alternatives. The Hodges did not present such evidence.

For these reasons, I dissent from the majority opinion, and would reverse the judgment of the superior court.

. See also: Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1074 (1st Cir.1980).

. The condemnee will not be required to present evidence that the alternative is feasible before making such a challenge.

. The majority’s approach will have an enormous practical impact. In order to protect themselves from legal challenges, condemnors will probably undertake elaborate pre-taking studies of alternatives. These developments will add greatly to the administrative costs of taking lands and will probably result in significant delays of needed projects.

. See State v. 0.644 Acres, More or Less, 613 P.2d 829 (Alaska 1980).

. In Arco Pipeline, we held that we would not examine the necessity of a taking under a declaration of taking unless the condemnee presented clear and convincing evidence of “fraud, bad faith, or some gross abuse of discretion” on the part of the condemnor. 539 P.2d at 72-73.

.The State did not abuse its discretion by not considering widening the road on both sides. That alternative would have required the State to acquire land on the southern side of the road and relocate the telephone line. The Hodges presented no evidence that the costs of these actions were so low that it was unreasonable for the State not to investigate the alternative.

Moreover, in my opinion, the State has a valid point when it cites in support of its position the general state policy against widening both sides of a road. Unless the legislature provides otherwise, it seems to me that general *471policies formulated by administrative agencies should be presumed to be rational. The burden was on the Hodges to show that the widening policy was irrational, not on the State to show that it was rational.