Eminent Domain Report

Eminent domain practitioners have been waiting for nearly two years for the Supreme Court to issue its decision in Property Reserve v. Superior Court.  At issue is the constitutionality of California's "Right of Entry" statutes, which allow an agency to enter onto private property for certain inspections and testing without filing a condemnation action.  In Property Reserve, the Court of Appeal rejected an agency's efforts to conduct precondemnation testing and inspections, finding that the statutory procedure essentially amounts to allowing a taking without payment of just compensation.  The Supreme Court granted review, and the case remains pending.

Meanwhile, in November 2015, a different panel of the Court of Appeal issued a ruling on a similar challenge to the "Right of Entry" procedures, coming down in favor of the public agency in Young’s Market Co. v. San Diego Unified School District.  That published decision seemed to give new life to the right of entry statutes, at least pending the outcome of Property Reserve.

But as my partner Brad Kuhn pointed out to public agencies in November, "don’t take too much comfort" from the Young's Market decision.  And he was apparently wise to suggest caution.  Today, the Supreme Court granted review in the Young's Market case, meaning that -- just like Property Reserve -- it is no longer citable precedent.  The Court's Order granting review specifically ties the two cases together, noting that

Further action in this matter is deferred pending consideration and disposition of related issues in Property Reserve v. Superior Court . . . .

I suspect both cases will be decided together.  Stay tuned for more.