The University of Tennessee, Knoxville

Tennessee County Municipal Advisory Service

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Necessity

Reference Number: MTAS-1292
Tennessee Code Annotated
Reviewed Date: April 11, 2016

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Unlike the review of the legislative body’s determination of public use, the court has only a limited review of the necessity to take any particular parcel of property. The legislative body’s determination of necessity is conclusive upon the courts in the absence of a showing of fraudulent or arbitrary and capricious action by the condemner. [54]

Arbitrary and capricious actions are willful and unreasonable actions taken without consideration for or in disregard of the facts existing at the time the condemnation was decided upon or within the foreseeable future. [55] An action is not arbitrary and capricious when exercised honestly and upon due consideration where there is room for two opinions, even if the court believes that the condemner erred in basing its decision on one of the two opinions. [56]

Thus, the property owner cannot ask the court to substitute its judgment for that of the condemner on what is in the best interest of the public. [57] The court cannot substitute its judgment on the proper parcel of property to be taken, as distinguished from similar property in the same area, or determine the suitability of a particular parcel of property for the proposed use, or decide the quantity of property required by the condemner for the proposed use. [58]


Notes:
[54] First Utility District of Knox County v. Jarnigan-Bodden, 40 S.W.3d 60 (Tenn. App. 2000); City of Maryville v. Edmondson, 931 S.W.2d 932 (Tenn. App. 1996); Duck River Electric Membership Corp. v. City of Manchester, supra; Justus v. McMahan, supra; City of Knoxville v. Heth, supra; Department of Highways v. Stepp, supra; Southern Railway Co. v. City of Memphis, supra; Metropolitan Government of Nashville and Davidson County v. Huntington Park Associates, Docket No. 88-144-II (Tenn. Ct. App. M.S. October 26, 1988), app. denied (March 9, 1989); County Highway Commission of Rutherford County v. Smith, supra; Harper v. Trenton Housing Authority, 38 Tenn. App. 396, 274 S.W.2d 635 (1954).

[55] Metropolitan Government of Nashville and Davidson County v. Denson, supra; Metropolitan Government of Nashville and Davidson County v. Huntington Park Associates, supra.

[56] Metropolitan Government of Nashville and Davidson County v. Huntington Park Associates, supra; Harper v. Trenton Housing Authority, supra.

[57] Justus v. McMahan, supra.

[58] Pickler v. Parr, 138 S.W. 3d 210 (Tenn. App. 2003); City of Knoxville v. Heth, supra; Department of Highways v. Stepp, supra; Southern Railway Co. v. City of Memphis, supra; Metropolitan Government of Nashville and Davidson County v. Huntington Park Associates, supra; Harper v. Trenton Housing Authority, supra.

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