Eminent Domain Report

A few weeks ago, my wife and I went to see Avatar.  With two young kids, we rarely see movies in the theaters, and we picked this one based on its advertised special effects, not any belief that it was the "best" movie among our choices.  

As I watched, I never really thought of it as an expression of outrage over eminent domain abuse.  Looking around the Internet, however, the movie seems to have been picked up by eminent domain reformists as a big budget example of eminent domain gone bad.  But is it, really?  Let's look at some facts ...

In November, we reported that the Barstow City Council would be deciding whether to reinstate the redevelopment agency's power of eminent domain.  According to a January 20 Desert Dispatch article, "Eminent domain issue sparks fear among residents," the City Council has decided to table the issue until May. 

According to the article, the redevelopment agency sees its eminent domain power as a necessary tool to remove blight in the area northwest of Interstate 15 near the outlet malls.  But like most redevelopment efforts, the issue is drawing much public debate.

At the City ...

The public outcry over eminent domain continues.  Claims of "eminent domain abuse" fill today's popular media; a January 21 article by Steve Cook, Eminent Domain is Alive and Well, claims 2 in 3 Americans oppose eminent domain. 

What so often gets lost in the shuffle is that most of the outrage focuses on a narrow aspect of eminent domain:  redevelopment efforts that involve condemning private property and transferring it to another private owner.   This is what sparked debate in the Kelo case, and it is making major headlines in New York, where the "Atlantic Yards" drama involves ...

2009 has come and gone.  With it, we moved one more year past 2005's Kelo decision -- and a lot closer to what those of us who have worked in eminent domain for many years consider "normal."  Massive eminent domain reform efforts seem -- for now -- to be a thing of the past.

The California Legislature passed no substantive changes to California's eminent domain law, and the closest we came to a marquee eminent domain case last year was probably the Marina Towers decision, which was much discussed, but does not represent any sweeping changes to California law.

Still, there were a few notable ...

On January 21, the Southern California Chapter of the Appraisal Institute is holding its 17th Annual Los Angeles/Orange County Market Trends Seminar.  The panel looks quite good, and the event is being chaired by Orell Anderson, MAI, Steve Valdez, Michael Kearns & Tyler Baird.  They report having only a few seats left, so act quickly if you want to attend. 

The seminar runs from 8:00 a.m. to 5:00 p.m., and is being held at ...

Last week, I reported on Kimco of Evansville, Inc. v. State of Indiana, an access-impairment case pending for consideration by the U.S. Supreme Court.   

In an order earlier today, the Court denied the Petition for Writ of Certiorari.  This is not entirely surprising; in the same order in which the Court denied the Petition in the Kimco case, the Court also denied similar petitions in 175 other cases.  The Supreme Court grants Petitions in less than five percent of the cases presented to it.  

The Court still has pending before it another eminent domain case, Stop the Beach ...

According to an Orange County Register article, "O.C. may force sale of property for tunnel," Orange County officials are considering the use of eminent domain to acquire 20 parking spaces from a Huntington Beach apartment complex.  The property is necessary for a storm drain project which tunnels under the I-405 freeway.  

The County's storm drain project is in response to a 1995 flood which required the evacuation of the apartment complex's ground-floor units.  The property owner has been offered $96,500 for the 7,200 square feet that make up the 22 parking spaces.  

The County's ...

According to a January 10 post on the Fox Rothschild Eminent Domain & Real Estate Litigation Blog, the U.S. Supreme Court is scheduled to hold a conference this week on whether to grant a Petition for Writ of Certiorari on an access-impairment claim arising from a condemnation case in Indiana, Kimco of Evansville, Inc. v. State of Indiana. 

Post author David Snyder explains that the need for Supreme Court review arises from a "general rule" in most states that damages arising from access impairments are not compensable as long as the owner is left with reasonable access, and the belief ...

The Alameda Corridor-East Construction Authority ("ACE") is working on a $75 million project to improve rail service in the San Gabriel Valley.  The project involves constructing a rail underpass on Baldwin Avenue in El Monte, and it is part of a larger, $1.1 billion project that includes 20 grade separations.   

ACE has acquired nearly all of the right of way for the Baldwin Avenue underpass, but one owner, Fred Jast, has not moved.  According to a recent San Gabriel Valley Tribune article by Rebecca Kimitch, "El Monte man fights eminent domain claim," Mr. Jast has been fighting with ACE for several years ...

San Bernardino currently has over a dozen overpass or underpass projects planned throughout the county.  Last month, officials had planned to move forward with condemnation proceedings for one such project, the $20 million Hunts Lane overpass located at the Colton-San Bernardino city line. 

But according to a Riverside Press-Enterprise article, "Hunts Lane overpass causes some concern," nearby property owners voiced concern over the railroad grade separation project's impacts to their businesses, such as blocking access and destroying visibility.  As a ...

The City of Rosemead has a vision of its future that transforms the city into "a small town in the heart of a metropolis."  That, according to San Gabriel Valley Tribune reporter Rebecca Kimitch, is the goal of the city's new strategic plan.  Ms. Kimitch's article, "Rosemead defines itself as small town in the big city," explains:

The to-do list is ambitious: landscape medians and plant trees along sidewalks; demolish dilapidated vacant buildings; develop new neighborhood parks; remove graffiti; expand community classes and develop a community computer lab; create a civic center at ...

Earlier this year, Nossaman sent out an E-Alert providing a status update on the use of federal stimulus dollars for California infrastructure projects.  Here on the blog, we've also recently reported on water-related property rights issues grabbing news headlines.  A recent Mojave Water Agency project -- backed by federal stimulus dollars -- ties the two topics together.   

According to a recent Victorville Daily Press article, "MWA uses eminent domain on land: Property is needed for R-Cubed project," the Mojave Water Agency is using eminent domain to acquire land ...

This week the Orange County Register reported in an article titled "Transportation agency to spend millions saving habitat" that the Orange County Transportation Commission is "beginning quietly" with what could be "one of the largest habitat preservation efforts in county history" by which the OCTA may acquire millions of dollars of land to protect native landscape.

The article states:

The preservation push [is] meant as a hedge against possible habitat damage from a 30-year, $4.8 billion freeway improvement project the agency is planning.

According to the article, the ...

I previously reported on a political discussion taking place in a San Diego community, San Ysidro, with respect to whether the city should reinstitute its expired power of eminent domain.  While San Ysidro contemplates this issue, another San Diego community -- this time Chula Vista -- is in the process of drafting its five-year redevelopment plan, which could include expansion.

Like San Ysidro, Chula Vista recognizes the public concern over the city's wielding its condemnation power, especially for redevelopment purposes.  Chula Vista, therefore, has sought public ...

Earlier this month, I reported on a Florida case now pending before the U.S. Supreme Court, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection.  Earlier this week, I reported on some other property-rights issues currently in the news. 

Yesterday, one of my partners, Howard Coleman, took things a step further, attempting to tie recent property-rights issues into a big picture view of what it all may mean for California property owners.   

His piece, Sea Level Rise and Coastal Boundary Lines – Consequences of Climate Change, examines the Florida case ...

One of the big eminent domain stories of the last few weeks involved the oral argument at the U.S. Supreme Court in the Florida beach case.  That case involves whether a government program to add sand to parts of the Florida coastline, creating new public beaches in front of private property that had been beach front constitutes a taking.  For more information about that case, see my December 15 article, "Erosion Control, or Coney Island South?" published in the Los Angeles Daily Journal. 

Now, two other water-related takings issues are making news.  The first, as reported December 14 by ...

We've previously reported on the increase in renewable energy projects in California, such as Southern California Edison's ("SCE") Tehachapi Renewable Transmission Project.  When it comes to wind farms, General Electric now takes the cake:  it has brokered a $1.4 billion contract to supply wind turbines and services for a wind farm that would be larger than any wind farm currently in operation in the world.

According to a December 10 Bloomberg article GE Wins $1.4 Billion Order for Oregon Wind Farm, the 338-turbine wind farm will stretch across 30 square miles in ...

Sierra Madre will allow its citizens to decide whether the city can use the power of eminent domain for private purposes.  According to a Pasadena Star-News article, "Sierra Madre resident[s] will vote on eminent domain," the city council agreed to put a proposed measure on the April 2010 ballot which would prevent the city from (1) condemning property and turning it over to a private developer, and (2) funding or cooperating with any other city agency using eminent domain (such as the Redevelopment Agency).

According to the article, City councilman John Buchanan is ...

Everyone knows the sad tale of America's automotive industry:  companies operating only through government subsidies and dealerships shutting their doors across the country.  So when the City of Vista came up with a plan to "create a second downtown car dealership and boost sales tax revenue," one would think the public would embrace it. 

But like many bold plans, this one has a wrinkle.  While most of the property needed to facilitate the plan is available for purchase, including the existing North County Ford site, one additional parcel is needed.  

According to North County Times ...

Today I attended the latest IRWA Tri-Chapter Installation Lunch for Chapters 1 (Los Angeles), 57 (Inland Empire), and 67 (Orange County).  This year, my home chapter, Chapter 67, hosted the event, which was held at the Nixon Presidential Library and Museum.  Despite the poor economy, 165 of the finest right-of-way professionals in Southern California showed up, and it was -- as always -- more a holiday celebration lunch than a formal meeting. 

International President Sandy Grigg flew down from Canada to install new officers for Chapters 1 and 57 (Chapter 67 will install new officers in ...

Perhaps the most talked-about California eminent domain case in 2009 has been the City of Stockton v. Marina Towers decision, in which the Court struck down the City's right to take property where the resolution of necessity contained no real public purpose (not surprising, since the City did not know at the time it filed the action what it would do with the property).   The case's tag-line usually played out like this:  the "project" was the condemnation itself, which does not qualify as a public purpose.   

This holding was itself somewhat interesting, as California law ...

A year or so ago, I attended a three-day symposium on regulatory takings that was held at Stanford University. At the end of the symposium, the final panel of speakers was asked to predict what the United States Supreme Court might be doing in the area of takings over the next couple of years. The answer of at least one panelist was essentially nothing. In his view (at least as I understood it), the Supreme Court had been grappling with various takings issues for years without coming up with particularly workable formulas and was done trying.

Well, based on an article in the Los Angeles Times ...

The City of Claremont voted 4-1 to extend its redevelopment agency's eminent domain authority for another 12 years.  In a November 29 Inland Valley Daily Bulletin article, Claremont renews its eminent domain power, reporter Wes Woods, II writes that the the City's redevelopment agency amended its redevelopment plan to prevent its eminent domain authority from lapsing in December. 

The use of eminent domain is often controversial, but especially so when it is for redevelopment purposes.  And, when redevelopment requires condemnation of residential property, the public tends to ...

So it's the Wednesday before Thanksgiving, and I thought I should spend some time thinking about what I'm thankful for (apart from Cal's victory at Stanford last Saturday).  Here's a list of three things an eminent domain attorney can be thankful for:

1.   I Live in a Country With Eminent Domain.  I know, who spends time being thankful for eminent domain?  But think about it.  In many places, the government just takes property, paying nothing.  Even in this country, before it was this country, when the Pilgrims took land from existing Native American tribes just after inviting them over for a ...

It seems most commentators on eminent domain generally, and on the use of eminent domain for redevelopment purposes in particular, adopt an extreme stance.  The loudest voices, especially in the "post-Kelo" world, tend to be property-rights advocates who denounce virtually any use of eminent domain, especially for redevelopment purposes. 

A good example of this appears in a recent San Diego News Network article by Brian Peterson, president of the Grantville Action Group:  "What we Learned at a Redevelopment Conference:  Don't do E-mail."  The article summarizes two ...

The Cato Institute's blog has an interesting post concerning the government's ability to induce local government agencies to enact tougher zoning standards that decrease the value of property which the government may want to acquire in the future. 

The post, titled "A Special Kind of Eminent Domain Abuse," deals specifically with the federal government's actions with respect to property it has contemplated acquiring for 30 years in order to expand the Everglades National Park.  The post  by Ilya Shapiro reports that in the case of 480.00 acres of Land v. United ...

The City of Visalia's road widening project at the Mooney Boulevard and Walnut Avenue intersection depends on the acquisition of a strip of private property necessary to relocate power poles.  According to the Visalia Times-Delta article, "Power poles, land acquisition trip up Visalia's plans for transforming Mooney/Walnut intersection," the necessary strip of land belongs to the owners of the Peachtree Shopping Center.  Those owners do not want the power poles on their property, and Visalia's City Council has therefore approved the use of eminent domain.

According to the owners ...

Yesterday, I spoke at the Appraisal Institute's 42nd Annual Litigation Seminar.  As usual, it was a great event, well attended by many of the top eminent domain appraisers in Southern California.  I spoke about recent developments in a presentation entitled "Eminent Domain: Where Are We, and Where Have We Been?"  [PDF] 

While I am confident that anyone in attendance would tell you I was brilliant, I want to focus today on some issues that arose in Ted Whitmer's presentation entitled Legal Instructions, Litigation & Appraisal Institute Standards.  Ted's firm, Appraiser Defense

With recreational travelers bound for Las Vegas and Laughlin combining with commuter traffic and freight movement, the junction of Interstate 15 and Interstate 215, known as the Devore interchange, likely qualifies as the the worst bottleneck on the I-15 in San Bernardino County.

And as Dug Begley reports today in a Press-Enterprise article titled Devore Interchange Discussed Today, the San Bernardino Association of Governments in planning to do something about it:

The interchange, a well-known bottleneck near where traffic enters and exits the Cajon Pass to the High Desert, is ...

Last night, the Riverside City Council approved the use of eminent domain to acquire the land necessary for the Five Points intersection project.  The project includes widening La Sierra and Hole avenues and Pierce Street, adding left turn lanes, and closing Bushnell Avenue off as a cul-de-sac at La Sierra.

According to the Press Enterprise article, "Riverside to spend $5 million on Five Points parcels," the City expects the acquisition to cost $5.4 million in order to compensate 15 property owners for land, furniture, and equipment.  Three landowners have reached deals, while the ...

The City of Corona has announced plans to extend its eminent domain authority in a downtown area which Corona feels is blighted.  The planned extension could impact businesses in the area, but Corona is carving out residential properties.  According to Riverside Press-Enterprise reporter Leslie Parrilla, in her November 16 article, "Public hearing on eminent domain area":

Hundreds of businesses are in the Main and Sixth Street area covered by the action. Not included would be residential properties within the Merged Redevelopment Project Areas.

Corona's current plans do not ...

With the completion of the I-5 widening project in Orange County north to the Orange County-Los Angeles County line, motorists cruised along the new, spacious lanes until they hit the County line, at which point an abrupt bottleneck brought them to a halt.  Now, the I-5 widening has commenced again, as the project moves north into Los Angeles. 

Across the county, the other major freeway connecting Orange and Los Angeles Counties, Interstate 405, could face a similar future.  The Orange County Transporation Authority has plans to widen the 405 freeway north from the 73 freeway to the ...

In 2003, the County of Riverside and the cities within western Riverside County formed the Western Riverside County Regional Conservation Authority (commonly known as the "RCA").  They delegated to the RCA the task of acquiring approximately 153,000 acres of privately owned property deemed necessary for habitat conservation under the Western Riverside County Multiple Species Habitat Conservation Plan (the "MSHCP").

Many property owners whose land falls within the MSHCP conservation area find themselves with few options:  generally, they can either ...

According to the November 13, 2009, Desert Dispatch article "City seeks to reinstate eminent domain powers," the Barstow city council will decide next month whether the Barstow Redevelopment Agency's power of eminent domain should be reinstated after expiring last year.  The Redevelopment Agency believes the use of eminent domain may be necessary to remove blight in the area along East Main Street bordering the Marine Corps Logistics Base. 

The article reports that the Redevelopment Agency's chair, Tim Silva, believes eminent domain is a valuable tool, although he'd hate to ...

In 2006, what seemed to be a simple real estate transaction occurred:  the Jurupa Community Services District sold 4.3 acres of property it didn't need to Stadium Properties, which planned to re-zone the property and develop it with a mini-storage facility. 

The problem was that the Community Services Distrcit sold the property without first offering it to other public agencies, a requirement under California law (Government Code section 54222).  More problematic was that the Jurupa Area Recreation and Park District had purportedly been expressing interest in the property for ...

Why would this (or any other) blog need another post about Kelo v. City of New London.  It probably doesn't, which is why this will be short. 

But, for anyone who still wants more of the story behind Kelo, the soon-to-be-closed Pfizer facility, or the heated arguments they engender, the New YorK Times ran an extended piece, A Turning Point for Eminent Domain? on November 12 that contains a number of different, high-level views on the subject.  (It also contains plenty of less than high-level views, as the story had generated 55 comments within just a few hours of its posting.) 

And, for anyone ...

Just a few weeks ago, we reported on Tulare County's plans to condemn a number of properties to facilitate the widening of Road 80.  Now, Visalia Times-Delta reporter Valerie Gibbons reports that Tulare County is considereing condemnation for four additional parcels, this time to facilitate the widening of Road 108 (or Demaree Street) between Visalia and Tulare. 

The November 11 article, "Board of Supervisors moves to seize land for Road 108 project while still in property negotiations," explains that both the Road 80 and Road 108 projects raise the same concerns from property ...

As mentioned in the Whittier Daily News article from last week, "Two property owners protest La Mirada plans for Valley View underpass at BNSF Railroad," the City of La Mirada and the City of Santa Fe Springs have moved forward with filing condemnation actions to acquire the necessary property for the Valley View Grade Separation Project.  The project will result in an underpass at the BNSF Railroad crossing.

The City of Santa Fe Springs' November 9 City Council Agenda discusses the adoption of a resolution of necessity for each of the necessary acquisitions.  It appears a few ...

Today, I attended the IRWA Chapter 67 monthly lunch meeting.   The speaker was Philip Law, Corridors Program Manager for the Southern California Association of Governments (SCAG).  He came to discuss SCAG's 2008 Regional Transportation Plan.  The plan is intended to coordinate efforts to implement transportation improvements through Southern California.  It involves a $531.5 billion, 25-year long range plan of needed improvements.

The Plan's Executive Summary [PDF] describes in detail the various plan components, including ...

Government agencies often require developers of large projects to build the necessary infrastructure to accommodate those proposed projects.  Examples include building a new roadway to reach the project, widening an existing roadway due to the project's adding extra trips to the daily traffic, and installing improvements for utilities and flood control, among other things.  But how do developers acquire the right-of-way when the necessary property is privately owned? 

The proposed Merriam Mountains residential development project in north Escondido is a ...

The impetus for one of the most infamous eminent domain cases in U.S. history was the City of New London, Connecticut's efforts to utilize a massive Pfizer plant as the basis to revitalize the surrounding area.   (The common myth that Pfizer was itself the intended beneficiary of the Kelo property is not correct.) 

The decision, Kelo v. City of New London, triggered a nationwide backlash against eminent domain when the Supreme Court ruled that economic growth, by itself, qualifies as a public purpose sufficient to satisy the right to take property by eminent domain.

The tale of what ...

Eminent domain lawyers who practice in Los Angeles County Superior Court are all familiar with LA County's detailed local rules on eminent domain -- "Chapter 16."   Chapter 16 is the chapter in the Los Angeles County local rules that deals specifically with eminent domain, and it contains meticulous procedural rules for the conduct of condemnation cases in Los Angeles.

Key provisions involve an elaborate "First Pretrial Conference" requiring a substantial, joint written submission to Department 59 (the LA County eminent domain department), along ...

On Tuesday, the City of Lake Forest voted unanimously to move forward with plans to condemn a 6.11-acre parcel to use as a land swap with the County of Orange.  The property will likely end up being incorporated into Whiting Ranch Wilderness Park. 

According to Orange County Register reporter Erika I. Ritchie, in her November 4 article "City moves forward with seizure of family's land," the property's owner, the Hernandez family, has resisted all efforts by the City to acquire the property voluntarily.   But the City needs the property to complete a land swap with the County that will ...

In an October 31 article for the North County Times, "VISTA: City wants to redevelop motel property," reporter Cigi Ross writes about the City of Vista's plans to acquire a motel property as part of a plan to redevelop the area:

The owner of a downtown Vista motel is accusing the city of trying to kick him out of his business and his home.

City officials announced Monday they're trying to purchase the Vista Riviera Motel as part of a redevelopment project along Vista Village Drive and Vista Way that could include a new car dealership. 

While the City's efforts currently involve a voluntary ...

There are any number of property rights advocates who believe eminent domain is always wrong, and should never be allowed.  As an eminent domain lawyer who sees how eminent domain works both from a landowner and from an agency perspective, I find it hard to understand that extreme viewpoint.   Does eminent domain abuse occur?  Of course.  Are there situations where agencies condemn things they should not condemn?  Absolutely.  Would the infrastructure needed for modern society exist without eminent domain?  Maybe not.  And thus, the story of a world without eminent domain:

Nancy was ...

On November 16-17, CLE International is holding one of the biggest eminent domain events of the year, its 11th Annual Conference, Eminent Domain:  Appraisal to Appeal.  The conference is being held at the Stanford Court hotel.  Registration is currently open.

Many top eminent domain attorneys and appraisers are scheduled to make presentations.  I am speaking with my partner, Gale Connor, at 3:30 p.m. on November 17.  We will be talking with Norman Hulberg, MAI, about ...

One of the oddities of California's public utility system is that private companies own and operate many of them, yet they behave very much like governmental entities, especially when it comes to eminent domain.  Major examples include Southern California Edison and Pacific Gas & Electric ("PG&E"); both are private companies functioning as public utilities, delivering electricity to their constituents, and both are overseen by the Public Utilities Commission. 

Occasionally, an actual governmental entity will seek to replace the private utility company.  Such is the case ...

On November 18, the Southern California Chapter of the Appraisal Institute is hosting its 42nd Annual Litigation Seminar.  This full-day event features a great panel of speakers, and has been approved for eight hours of both Appraisal Institute and Office of Real Estate Appraisers ("OREA") continuing education credit. 

It is being held at:
Embassy Suites Hotel
11767 Harbor Blvd.
Garden Grove, CA 92840 
714-539-3300

I will be speaking at 3:45 p.m. on "New Cases & What’s Happening in Eminent Domain."  I understand that I am the last speaker of the day, and that you will ...

When LifeChoices sought to expand its rehabilitation center in 2002, the City of San Jose rejected the proposal, citing its plans for a future Berryessa Bay Area Rapid Transit ("BART") station, which would require freeway interchange improvements on the property.  According to John Woolfolk's October 23 Mercury News article, "San Jose to pay $2 million to acquire parcel and settle lawsuit," five years later LifeChoices' owner, John Licking, filed suit, challenging the City of San Jose's denial as constituting discrimination against the disabled.

Now, San Jose has agreed to pay ...