Eminent Domain Report

In California eminent domain cases (this is an area in which the law varies dramatically from state to state), the property / business owner is entitled to an award of litigation expenses (including attorneys' fees) if (1) it makes a reasonable final demand for compensation and (2) the agency makes an unreasonable final offer of compensation.  (See Code Civ. Proc. § 1250.410.)

How one analyzes "reasonableness" once the jury issues its verdict has been the subject of a number of court opinions.  Tracy Joint Unified School Distract v. Pombo (Oct. 29, 2010) adds to that body of law. 

In ...

According to an article on Recordnet.com, "Water fight goes to court," San Joaquin County water officials are planning to use their eminent domain powers to take thousands of acres of ranch land for a proposed reservoir.  Officials say the project -- called MORE WATER -- is needed to satisfy the County's growing population and to reduce dependence on wells which are depleting the groundwater supply.

The County recently filed a lawsuit in order to gain access to the ranchers' property to conduct surveys and drill test holes.  14 of the 16 landowners have granted the County ...

According to an article in the Orange County Register, "H.B. mobile home park owner fights city's property seizure," the owner of Pacific Mobilehome Park is challenging a street-widening project for which the City of Huntington Beach plans acquire eight mobile homes through the use eminent domain.  The street-widening project will widen Atlanta Avenue between Huntington Street and Delaware Street, and the mobile home park owner claims the project's environmental impacts were not sufficiently studied. 

The City's zoning administrator waived the need for an in-depth ...

Few property owners look forward with any enthusiasm to the date the government finally announces it is moving forward with plans to condemn their property.   But owners who pretend that day will never actually arrive often realize too late that they have missed opportunities to protect their investments.

Eminent domain often proceeds over a very long time-table.  From project conception to right of way acquisition, years may pass, with properties held up in a cruel limbo as owners wait to see if the project really happens, and if so, whether their property will ultimately be impacted. 

In ...

Yesterday, we celebrated the one-year anniversary of our blog's launch.  We were planning to get a cake, but remembering back to what my one-year-old looked like after we put a cake in front of him on his first birthday, we decided to commemorate the occasion by preparing a "top 10" list from our blog's first year.

Admittedly, selecting 10 items was not a scientific process, and "top 10" really became "10 posts I can describe in a single short sentence," but in any event, here it is, the Top 10 Things You've Learned if You've Been Following Our Eminent Domain Blog (by the way, I find it ...

Business goodwill appears to be a hot topic for the California Court of Appeal, as it was the primary issue in the recent LAUSD v. Casasola opinion, and is again the focus of an unpublished decision that came down last week, People Ex Rel. Department of Transportation v. Ahn.

In Ahn, Caltrans condemned a shopping center where Ahn owned and operated a framing store and art gallery.  After Caltrans took possession, the owner transferred to a relocation site.  At trial, Caltrans' goodwill expert determined the business had $26,000 of goodwill in the "before condition," and ...

According to an article in this week's New York Times, "Solar Power Plants to Rise on U.S. Land," the United States has approved two large solar power plants to be built on federal lands.  This is the first time such large plants will be built on federal land, and both are slated for California. 

The first plant is proposed by Tessera Solar and will be built on 6,360 acres in the Imperial Valley.  The second plant is proposed by Chevron Energy and will be built on 422 acres in the Lucerne Valley.  When completed, the two projects could generate enough energy to power as many as 566,000 ...

Just a quick update on yesterday's post about West Oakland involving Kroger's plans to build a store there.  Last night, the City Council unanimously approved changes to its eminent domain policies to allow the city to condemn the property necessary for the planned project. 

While reports of the hearing have somewhat different tones, it is fairly clear that the meeting was well attended, and that audience members were passionate, regardless of which side of the issue they supported. 

As the Sean Maher reports it for the Contra Costa Times in "Oakland City Council changes eminent ...

West Oakland has some notoriously tough neighborhoods, including the large ACORN project area where Black Panther co-founder Huey Newton was killed and an area known unflatteringly as "Ghost Town."  Over the years, it has been the subject of some controversial public works projects, facilitated through extensive eminent domain.  This includes the West Oakland BART station, a major postal facility, and the ACORN housing project.  

An October 4 article in the Contra Costa Times by Brian Beveridge, "'Eminent domain' draws shudders in West Oakland" describes the ...

We've reported in the past about some of the regulatory takings issues created as a result of the Western Riverside County Regional Conservation Authority's ("RCA") efforts to conserve property pursuant to the Multiple Species Habitat Conservation Plan ("MSHCP").  It now appears that those conservation efforts have created quite the turmoil with citizens in the City of Murrieta.

According to a recent North County Times article, "MURRIETA: Landowners frustrated with conservation board, city leaders who refuse to meet," about 100 members have organized a group called the ...

Just before the midnight deadline for taking action yesterday, Governor Schwarzenegger vetoed AB 2531, the bill that would increase the eminent domain authority of the Community Redevelopment Association of Los Angeles.  His late-night message to the legislature was as follows:

To the Members of the California State Assembly:

I am returning Assembly Bill 2531 without my signature.
Redevelopment funds are to be used solely for the purpose of eliminating blight in urban neighborhoods in California cities. This bill would authorize the use of redevelopment funds for projects ...

In May, we reported on the City of Chino Hills' efforts to stop a portion of Southern California Edison's Tehachapi Transmission Project.  The project involves 175 miles of transmission line right of way designed to serve wind farm development in the Tehachapi area. 

Much of the right of way for the transmission lines runs through remote, undeveloped areas.  Though there have been many disputes over the amount of money SCE must pay to acquire any new right of way it needs (much of the project runs along pre-existing right of way), there has been little dispute about SCE's right to ...

Proposed changes to California's redevelopment law have been quietly making their way through the California legislature.  With little publicity, AB 2531, authored by Assemblyman Felipe Fuentes, made its way through the process this summer.  After a series of amendments, AB 2531 was passed by California's Senate on August 12 by a vote of 22-13.  On August 27, it passed California's Assembly, 50-26.

On September 10, the bill was presented to Governor Arnold Schwarzenegger for signature.  Under the California legislative process, the Governor has until September 30 to sign or veto ...

We've previously reported on the City of Imperial Beach's use of eminent domain to displace tenants in the Miracle Shopping Center.  According to a recent  San Diego Union Tribune article, "Eminent domain to begin soon against IB merchant," the City is continuing down that path -- this time with the business South Bay Drugs.  The owner has operated the business in the shopping center for 28 years. 

The City Council voted on Wednesday to move forward with the adoption of a Resolution of Necessity so the eminent domain process could begin.  But the case has a bit of an interesting twist.  

The City of Fontana will meet tonight to consider adopting a resolution of necessity to acquire property for the Citrus Avenue Interchange project.  According to a September 21 article in the The Sun, "Citrus Avenue interchange on Fontana City Council agenda," the City is anticipating that the majority of the funding for the $57.5 million project will come from Proposition 1B and Measure I funds, along with State Transportation Improvement Program funds.  

The City has apparently been in negotiations with the property owner, but has been unable to reach an agreement.  According to the ...

According to a Modesto Bee article, "Stanislaus County Board of Supervisors Watch," Stanislaus County will vote tonight on whether to utilize the County's power of eminent domain, if necessary, to acquire property necessary for the Kiernan Avenue / Highway 99 interchange project.  The County apparently believes it can secure the necessary property much quicker than state transportation leaders.  Construction is scheduled to begin in January 2012.

The County is also hoping to secure $46.5 million in state bonds set aside for Highway 99 improvements, and in order to obtain this ...

According to a Bay Area Biz Talk blog post for the San Francisco Business Times, "Talk of Eminent Domain Stirs Fears in West Oakland," the City of Oakland is contemplating reinstituting its redevelopment agency's power of eminent domain in order to acquire a site for a new Foods Co. (Kroger) grocery store.  

The five-acre site in question is located at the corner of West Grand Avenue and Filbert Street, and is currently home to an industrial warehouse and an autobody shop.  While the proposed grocery store has done much of the negotiating and acquisition itself, it has been ...

One of the most vexing aspects of eminent domain for many property and business owners is the fundamental fact that the owner does not get to decide whether to sell the property.  I cannot recall the number of initial client meetings I've had over the years that began with the client asking "How do I stop this from happening?"

In most cases, my clients are disappointed to hear my answer:  "You can't."  But this answer is overly simplified, because there are actually several grounds for preventing the government from condemning property. 

A recent post on the Biersdorf & Associates eminent ...

The County of San Luis Obispo is considering a new way to finance infrastructure improvements -- the creation of a redevelopment agency.  According to a San Luis Obispo Tribune Article, "Redevelopment agency reconsidered," County supervisors have instructed their planning staff to investigate the pros and cons of instituting such an agency.  

County planners noted that a redevelopment agency could be set up to cover most rural communities, and specifically singled out San Miguel and Oceano as areas that could benefit from redevelopment.  While several individuals noted the ...

Just a reminder for all you eminent domain and right of way practitioners still mentally on summer hiatus.  IRWA Chapter 67 (Orange County) starts its new year next week.  The September meeting is Tuesday, September 14, at the Holiday Inn, Santa Ana/OC Airport, located at 2726 South Grand Ave., Santa Ana CA 92705.

The meeting starts with a "meet and greet" at 11:30.  Lunch commences at 12:00.  We will have a lunchtime presentation from John Ellis of Integra Realty Resources in Los Angeles.  He's going to give us an update on the real estate climate here in Southern California, and I've made ...

For those who didn't get enough of littoral property rights, accretion, and avulsion in reading about this summer's Supreme Court decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, there is a new case making its way through the system. 

In Maunalua Bay Beach Ohana 28 v. State of Hawaii, the court analyzed a 2003 Hawaii law that had the effect of transferring ownership of property created by accretion to the state.   In a split decision, the Hawaii Court of Appeal held in 2009 that with respect to property that existed at the time the law went ...

The use of "government stimulus" spending to spur economic growth has been a point of heated political controversy for the past several years.  A proposal outlined by President Obama over the weekend involves spending $50 billion on the nation's transportation infrastructure, focusing on the aging highway system, rail lines, and airports. 

According to a September 7 Wall Street Journal article by Gary Fields, "Obama in Infrastructure Push,"

At a Labor Day rally in Milwaukee, Mr. Obama said the initiative would be part of a larger effort to fix 150,000 miles of roads, lay or rebuild ...

We reported several months ago about the property owner impacted by the expansion of the Everglades National Park petitioning the US Supreme Court to determine how to treat the government's enactment of tougher zoning standards that decrease the value of property which the government may want to acquire in the future.  The issue presented was whether the government's actions must be the primary cause of the precondemnation depression of the property's market value, or whether there must only be a nexus between the government's actions and the depressed market value.

This is an ...

In Los Angeles Unified School District v. Casasola (Aug. 5, 2010), the Court of Appeal examined the interrelationship between recovery of lost business goodwill pursuant to Code of Civil Procedure section 1263.510 and recovery of relocation expenses pursuant to Government Code section 7267 et seq. 

My colleague, Gale Conner, prepared a good summary of the Casasola case detailing the facts and the Court's reasoning.  The bottom line is that the Court held that items that might be recoverable under the Relocation Act cannot be included in a claim for loss of business ...

For anyone looking to spend more time on eminent domain issues, there are two upcoming events you may want to consider. 

• For those looking for a one-day commitment, I recommend the IRWA, Chapter 1 2010 Fall Education Seminar, which is taking place on October 26 at the Quiet Cannon in Montebello.  I don't have the full list of speakers yet, but it's always a good event, and my partner, David Graeler, is Chair again this year. I'll be talking about the interrelationship between goodwill and the Relocation Act, using the recent Casasola opinion as a jumping off point (look for a post about ...

The California Court of Appeal issued an interesting unpublished decision yesterday addressing a number of eminent domain issues, ranging from right to take challenges, entitlement to goodwill, severance damages, and jury instructions.  The case, City of San Luis Obispo v. Hanson, garnered enough attention that several third parties filed Amicus briefs with the Court.

By way of background, the City of San Luis Obispo decided to realign a road partly in order to accommodate a newly approved Costco development.  The realignment required right-of-way acquisition from a property ...

The City of Laguna Woods had been leasing the building it used for City Hall on El Toro Road for a number of years.  In 2005, the City -- apparently tired of leasing the space -- decided to acquire the property by using its power of eminent domain.  After proceeding to trial, a jury determined this week that the fair market value the City is required to pay for the building was $6.43 million -- $2.78 million more than the City had initially offered.

According to an Orange County Register article, "Laguna Woods must pay $6.4 million to take City Hall," the issues that resulted in the ...

On its face, the City of Rancho Cordova's eminent domain action to acquire a vacant parcel for redevelopment purposes is a familiar story. The government wants to seize private property in order to turn the property over to a third party for redevelopment.  This is the basic fact pattern that caused the national eminent domain uproar that started when the Supreme Court issued its 2005 Kelo decision.

Unlike in Kelo, however, in California the government typically cannot take such steps without making appropriate findings that the property being condemned is "blighted."  This ...

The City of Glendale plans to vote tonight on a plan that would extend eminent domain authority in its central redevelopment area for an additional 12 years.  According to an August 10 article in the Glendale-News Press, "City Set to Extend Eminent Domain," the agency's eminent domain authority is currently set to expire next month. 

According to the Director of the Community Redevelopment & Housing Department, Philip Lanzafame, eminent domain is a key tool if redevelopment projects are to succeed:  "If you didn't have this, some property owners could hold the community hostage."

This ...

We've been following the City of Barstow's potential reinstatement of its redevelopment agency's power of eminent domain, most recently noting that a special hearing was set for August 5.  According to a Desert Dispatch article from over the weekend, "Eminent domain power reinstated for parts Riverside Drive and east Barstow," the reinstatement was only partly successful:  the redevelopment agency can now use eminent domain on commercial property in Project Area 1 (the eastern part of the City at the end of Riverside Drive near the sewer plant), but a deadlocked vote caused the ...

We have reported several times on the City of Barstow's efforts to renew its Redevelopment Agency's eminent domain authority, but Barstow residents apparently remain skeptical.  A public meeting in April left many dissatisfied with the City's efforts, and the City's Council's effort to address the issue in May led to a deadlock. 

Now, the City has scheduled an additional public meeting for this week in anticipation of the City Council's August 5 special meeting on the issue. 

According to a July 25 article in the Desert Dispatch, "City to attempt second eminent domain meeting ...

According to an article in the Californian, "Salinas mayor: Beat blight, grow tax base," the City of Salinas is slated to vote tonight on whether to expand three Salinas redevelopment zones.  The city is considering such a move in order to grow property tax revenues as assessed property values in the area rise.

The Mayor of Salinas, Dennis Donohue, believes business created in the redevelopment zones could bring an influx of between $5 million and $15 million annually in sales and occupancy taxes.  He is quoted as saying:  "We have to expand our tax base, and this is a possible tool to do it."  ...

With plans to demolish the old Carriage Square shopping center and rebuild it with a Lowe's, the City of Oxnard was on the verge of passing a resolution of necessity to acquire by eminent domain the leasehold interests of one of the few remaining tenants of the center.  However, according to an article by Scott Hadly, "Oxnard, credit union likely to avoid eminent domain clash," the City's threat of eminent domain appears to have resulted in a deal with that tenant, Pacific Oaks Credit Union.

In order to force the tenant to relocate and give up its rights under its lease, the City ...

Most of the media surrounding eminent domain -- and eminent domain for redevelopment purposes in particular -- involves claims of eminent domain abuse and grass roots efforts to limit the government's ability to condemn property. 

In the City of Ukiah, however, local business owners are apparently taking the opposite stance, urging the City to reinstate its eminent domain powers that lapsed in 2001 to deal with a blight situation that business owners believe are hurting them.  We initially reported on the issues with the Palace Hotel back in Februrary, but a July 9 article in The ...

According to an ABC news story, "Threat of Eminent Domain Raises Tempers at City Hall," residents of downtown Fresno are up in arms about the City's effort to extend its redevelopment rights.  While City Council members tried to assure residents that the use of eminent domain would be a "last resort," those in attendance at the council meeting were unappeased. 

In particular, residents complained that the City's plans are actually limiting efforts to improve the area because no one wants to spend money on a property or business when it is unclear what the City is going to do with the ...

Five years ago today, the Supreme Court announced its decision in Kelo v. City of New London, triggering perhaps the most broad sweeping eminent domain reform effort in U.S. history, along with tremendous critical commentary -- including, as just one example, an August 2005 piece on Forbes.com titled Eminent Disaster.

Quite frankly, I'm a bit bored by the decision after five years (I can't begin to count the number of times I've explained the decision and what it means to clients, at seminars and conferences, and on this blog).  However, others are marking the occasion with ...

Last fall, we told you about a key rent control / takings decision, Guggenheim v. City of Goleta, in which the Ninth Circuit held that a rent control ordinance consituted a taking.  In March, we reported that the Ninth Circuit had ordered an en banc hearing of the Guggenheim case. 

Yesterday, the Court held the en banc hearing, and while it may be some time before the Court issues its opinion, the hearing itself may provide some good insights about what may happen (and what it may mean in the larger context of regulatory takings claims).  

Very generally speaking, the Court was critical of ...

Another recent interesting court decision was somewhat lost in all the excitement last week over (1) the County of Los Angeles v. Glendora Redevelopment Project case striking down Glendora's redevelopment plan for inadequate blight findings and (2) the US Supreme Court decision in the Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection case rejecting a "judicial takings" claim. 

That recent decision was by the California Court of Appeal in City of San Jose v. Union Pacific Railroad, which came down a month ago, but received little ...

The Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection case received considerable attention both before the Supreme Court agreed to hear it, and following the very colorful oral argument before the Court last December. 

At issue was whether Florida's efforts to restore some of its beaches through depositing 75-feet of sand seaward of the high-tide line rose to the level of a taking due to the restoration work's causing former beach-front owners' property lines to be moved further away from the ocean water.  

What made the case even ...

One of the big issues in eminent domain over the past five years has been the role of blight in justifying eminent domain for redevelopment purposes.  The seminal decision (that started all the ruckus) -- Kelo v. City of New London -- involved the use of eminent domain for redevelopment purposes where the city did not even pretend it was acting to eliminate blight.

Kelo had little direct impact on California's eminent domain law, because even before the Supreme Court issued its opinion in 2005, California's law allowed eminent domain for redevelopment purposes only upon a proper showing ...

From 1901 to 1961, the Pacific Electric Railway -- or the "Red Car" -- operated as one of Southern California's primary mass transit options, connecting Orange and Los Angeles Counties in a large series of rail corridors.  Now, officials are examining ways to reuse the West Santa Ana Branch Corridor, an abandoned 20-mile rail corridor running from Santa Ana to Paramount. 

According to a June 14 Orange County Register article, "Is reusing the old Pacific Electric Railway a possibility?, the hope is that someone can find a way to use the abandoned rail line to ...

We've previously reported on the City of Vista's moving forward with the use of eminent domain to acquire the Riviera Motel and other properties in order to assemble property for an auto mall.  It appears that the eminent domain dispute has now reached a resolution, as the North County Times is reporting that Vista city council approved a settlement with the motel owner and another nearby property owner.

According to the article, "VISTA: City approves $3.2 million in property purchases," the Riviera Motel owner is receiving compensation of $1.65 million for the .71-acre ...

The City of Lodi held a special meeting of its City Council this week to talk about options for a revised Redevelopment Agency.  And, even though (1) the City has already enacted protections against using eminent domain for redevelopment purposes, and (2) the proposal includes no eminent domain authority, it appears residents are still up in arms over the issue. 

According to a June 10 article by Maggie Creamer of the Lodi News-Sentinel, "Eminent domain a major concern at Lodi City Council's redevelopment meeting," the public appears more concerned with the threat of eminent domain ...

The City of Newport Beach is working on a plan to widen Jamboree Boulevard adjacent to State Route 73 (the northern end of the San Joaquin Hills Toll Road).   The city has acquired much of the property needed for the larger right-of-way, but has not been able to reach agreement with the owner of the Back Bay Court shopping center.   On Tuesday night, the city authorized proceeding with an eminent domain action to acquire the property.

According to a June 9 Orange County Register article by Jeff Overley, "City OKs using eminent domain on mini-mall" ...

A recent post on the Biersdorf & Associates Eminent Domain Blog discussed criteria for hiring an eminent domain attorney.  While reading the post, I found myself agreeing with much of what they have to say, and since finding a qualified eminent domain attorney can be a tricky process, I thought I would pass it along.  That said, I disagree with some of what they say, so I also wanted to offer my own viewpoint.

Biersdorf breaks the inquiry down into three steps ...

Sorry you haven't seen a post from me in a few weeks.  My wife and I just had our first child (a future super star eminent domain attorney, of course), and I've been on "dad duty."  My colleague Rick Rayl has been holding down the blog fort, although upon my return I see he's been blogging about things such as Canadian companies and mining rights in Nevada.  Now that I'm back, how about some California eminent domain news?

In the article "Sanitation Company Eyes Country Club Property," Tehachapi News is reporting that the Brite Canyon Resource Recovery (a division of the Golden ...

Last week was a fairly slow week for California eminent domain news, but I came across an article about a case that seems interesting enough to warrant a brief discussion, even if it has no direct application in California. 

Fronteer Gold, apparently a Canadian-owned company with a division formed under Delaware law, is seeking to condemn property in Nevada to help implement its plans for the Long Canyon gold mine. 

You might wonder how a private company, under Canadian ownership, can condemn property from private owners in Nevada.  Apparently, Nevada law contains a provision that ...

Earlier this week, Chino Hills voted 3-0 (with two members abstaining for conflict reasons) to appeal an earlier court ruling that the Public Utilities Commission has "exclusive jurisdiction with regard to the right-of-way property rights issue between the City and SCE regarding the Tehachapi Renewable Transmission Project route through Chino Hills."  

Southern California Edison's Tehachapi Renewable Transmission Project is a massive, $1.8 billion project designed, in large part, to connect wind farms in the Tehachapi area to the main electrical grid.  The project ...

Both Chapters 57 and 67 of the IRWA have June meetings upcoming (their last meetings before the summer hiatus).  Details are:

• June 2, 2010:  Chapter 57 is meeting at the Riverside Convention Center, located at 3443 Orange Street, Riverside.  The speaker will be Ken MacVey, an eminent domain attorney with Best, Best & Krieger in Riverside.  Contact Communications Chair Jan Spindler for more information.
• June 8, 2010:  Chapter 67 is meeting at the Holiday Inn, Orange County Airport, located at 2726 South Grand Avenue, Santa Ana.  We will have two speakers, Ricky Rodriguez from Caltrans ...

One interesting valuation issue eminent domain attorneys and appraisers run into in California is when a "special use" property -- such as a church or school -- faces condemnation.  How does one value such a property when there is no relevant market or comparable sales to rely on? 

The Legislature enacted Evidence Code section 824 to deal with such situations, specifically providing that such special use properties can be valued based on a reproduction or replacement cost analysis (i.e., the cost of purchasing replacement land, making the land suitable for the same use, and the cost of ...