Eminent Domain Report

When public agencies or utilities move forward with infrastructure projects, one of the most critical steps is determining exactly what property rights must be acquired. Too often, agencies focus solely on the permanent footprint of the project, only to discover late in the process that they lack authority for construction activities, staging areas or access. Early project planning on the front end helps avoid costly delays, litigation and redesign.

Existing Rights

The first analysis should always be – what rights are already in place? Many agencies or utilities hold ...

In the wake of devastating 2025 wildfires, Assembly Bill 254 stands poised to reshape California's wildfire prevention, mitigation and funding strategies. From a groundbreaking $18 billion infusion into the state’s Wildfire Fund to new rights of first refusal for insurance subrogation claims, this legislation could have sweeping implications for utility companies, insurers, and wildfire-affected communities. A host of additional provisions also target transmission infrastructure upgrades, wildfire risk reduction and clean energy innovations.

Stay tuned as we break ...

While there are many benefits to owning property in a common interest community, most people love to hate them. Condemnors should be especially wary when seeking to acquire property owned by a homeowners association. Here are a few things to consider:

1. Are CC&Rs considered property or contracts in your state? The Declaration of Covenants, Conditions, and Restrictions, or CC&Rs, is a document recorded on the property that sets out rules for ownership in the community. The covenants are reciprocal, meaning the owner of each lot has obligations to every other lot, as well as a right of ...

When a municipality acquires private property in an eminent domain case, it must first pay just compensation to the property owner. The municipality must file a complaint—a lawsuit—asking the appropriate court to enter a final order of condemnation, vesting title to the property in the municipality. Litigation can take years as the amount that the municipality must pay to the property owner is generally determined by a jury trial—at the very end of the lawsuit’s life.

This can be challenging for municipalities with tight project timelines or an immediate need to put the land ...

The contours of inverse condemnation liability are often tested by creative California plaintiff’s lawyers. In an opinion earlier this year, one Northern California Federal Court dealt with a novel lawsuit in which the Vichy Springs Resort asserted Federal and state-based inverse condemnation theories against the City of Ukiah arising out the City’s shooting range used to train its police officers (Vichy Springs Resort v. Ukiah).

According to the complaint, guests have been visiting the resort for almost two centuries to take in the curative powers of the carbonated warm ...

In 2024, in what was heralded as a big win for developers in California, the U.S. Supreme Court upended decades of California precedent and held that legislatively enacted development impact fees must satisfy the “essential nexus” and “rough proportionality” tests established in Nollan v. California Coastal Commission (1987) 483 U.S. 825 and Dolan v. City of Tigard (1994) 512 U.S. 374. Sheetz v. County of El Dorado (2024) 601 U.S. 267. But the Supreme Court did not decide whether the legislatively enacted fee program at issue in Sheetz actually failed to comply with ...

Planning and constructing public infrastructure projects takes significant time – sometimes many years. Property owners and businesses who may be impacted are left in a state of limbo, not knowing for sure whether the project will move forward, when it will move forward and what the ultimate impacts will be. This can make selling or leasing property problematic and it can also become difficult for businesses to plan effectively. Despite these impacts, unless public agencies engage in oppressive or unreasonable conduct or unreasonable delay, there is typically no liability for ...

Periodically, a new public project needs to acquire land that is already put to an existing public use. In order to condemn such land, the condemning entity must demonstrate that the proposed use is either a compatible use or a “more necessary public use.” If thorough due diligence is not conducted in the early project stages to identify and address impacted existing public uses, a condemning entity may later face a right to take challenge based on the position that the proposed use is not more necessary than the existing public use.

So, what uses qualify as a more necessary use?

Acquiring property for public projects typically does not occur until after the project has received environmental approval. In California, complying with the California Environmental Quality Act (CEQA) can sometimes take years, thereby significantly delaying the right-of-way acquisition process, holding up the delivery of public infrastructure projects. With the legislature recently enacting CEQA reform, will this expedite the timing for property acquisitions and eminent domain proceedings? Maybe, depending on the project. … 

On June 24, 2025, the California Court of Appeal heard argument in Sheetz v. County of El Dorado. You may recall that the California Court of Appeal previously held that legislatively enacted development impact fees are exempt from Nollan/Dolan scrutiny, consistent with what was at the time longstanding California Supreme Court precedent. In 2024, however, the U.S. Supreme Court held that legislatively imposed exactions are not exempt from the essential nexus test established in Nollan v. California Coastal Commission (1987) 483 U.S. 825 or the rough proportionality test in ...

For the third year in a row, our attorneys have outlined key trends and issues shaping the water landscape in Nossaman’s California Water Views – 2025 Outlook. Topics range from the effects of climate change on water availability and infrastructure to critical updates in legislative and regulatory frameworks. The publication not only provides insight into developments at the state level but also addresses how decisions from Sacramento, Washington, DC and across the U.S. are influencing California’s water sector. … 

Every condemnation case in Texas must go through an administrative phase in which disinterested real property owners (who live in the county where the suit is filed) are appointed as Special Commissioners to assess the market value of the property being condemned and damages, if any, to the remainder property and render an Award on compensation after hearing testimony and evidence from both sides at a Special Commissioners Hearing. … 

Can a public entity be held liable for inverse condemnation when it fails to prevent another party from causing damage to private property? This one is pretty simple: the answer is no. 

In Youngsma v. City of Cypress, homeowners sued the City for inverse condemnation and public nuisance because the construction of a vehicle maintenance and repair facility on property near their homes caused significant damage. The homeowners claimed that a school district owned the property in question, and the City failed to hold any public hearings or approve of the proposed repair facility. The ...

We previously reported on the recent California Court of Appeal district split as to what standard of review should apply in utility takeover condemnation cases as it pertains to more necessary public use challenges, and specifically whether courts are to exercise independent judgment or whether a public agency’s determination is subject to substantial deference. This district split stems from the 2024 South San Joaquin Irrigation District v. PG&E case (holding that courts should exercise independent judgment) and the 2025 Town of Apple Valley v. Apple Valley Ranchos Water case (holding that courts should give deference to a public agency’s findings). … 

The Fifth Amendment to the U.S. Constitution states, in part, “nor shall private property be taken for public use, without just compensation.” The federal Endangered Species Act deals with a different type of “taking.” Section 9 of the Endangered Species Act generally prohibits any person from “taking” any species of fish or wildlife listed as endangered. 16 U.S.C § 1538. This is a general prohibition, because if a project involves a federal permit or approval, a federal resource agency can prepare a biological opinion under Section 7 of the Endangered Species Act and ...

In California, the primary governing structure for condemnation suits is set forth within Title 7 of the California Code of Civil Procedure (CCP 1230.010, et. seq.), otherwise known as the Eminent Domain Act, which was enacted in 1975. In 2006, a few modest updates were made, including the addition of an appraisal reimbursement provision that requires a public entity to pay the reasonable costs, not to exceed $5,000, for a property owner facing condemnation to secure its own appraisal. Now, about twenty years later in 2025, new legislation, AB 1033, has been introduced to the ...

Join us in April for Nossaman's Eminent Domain Seminars! We will be hosting our Northern California seminar in Berkeley on April 8th and our Southern California seminar in Costa Mesa on April 15th.

These complimentary programs will focus on current issues involving right of way, property acquisitions and eminent domain.

Key topics to be covered by our panels of leading industry professionals include:

• Valuation Methodologies: Covering the income approach, cost approach, cost to cure vs. diminution in value and related valuation approaches;
• Appraiser’s Guide to Expert ...

Please join me and my colleague Liz Klebaner on March 11 as we present “Environmental Considerations for Right of Way Acquisition” during the International Right of Way Association (IRWA) Chapter 67 March Luncheon in Santa Ana. We will discuss how environmental issues factor into the right-of-way acquisition process, including best practices for identifying and tackling pre-acquisition and post-environmental approval issues.

The International Right of Way Association (IRWA) is a global, member-led organization of dedicated professionals within the right of way ...

When water agencies provide water to customers, and that water causes damage to customer property, can water agencies face inverse condemnation liability? For quite some time, inverse condemnation liability appeared to be unavailable based on the theory that the customer “invited” the water onto private property by voluntarily connecting to the public water system. However, a recent court of appeal decision, Shehyn v. Ventura County Pub. Works Agency (2025 Cal. App. LEXIS 94*), has opened the door to potential inverse claims, at least where a property owner receives a ...

In 2024, we reported on a significant published appellate decision, South San Joaquin Irrigation District v. PG&E, which concluded that when a public agency uses eminent domain to acquire the assets of an electric, gas, or water utility, the court can exercise its independent judgment in determining whether the agency’s acquisition satisfies the public use and necessity requirements. The decision provided guidance on the standard of review and the limited level of deference given to public agencies in their decision-making on such utility take-overs. … 

Appraising a property being acquired through eminent domain involves a number of unique valuation rules, including highest and best use, larger parcel, date of value, and unique evidentiary restrictions on comparable sales and hypothetical conditions.  One of those rules is known as the “project influence rule”:  an appraiser must disregard any increase or decrease in the property’s value due to the project for which the property is being acquired.  A recent court of appeal decision, City of Pacifica v. Tong (2024 Cal. App. Unpub. LEXIS 7984*), highlights why this rule is not ...

When a public agency acquires property for a public project, property owners have a constitutional right to receive just compensation. But what about the businesses that operate on the property – are they entitled to anything? … 

Join me and my colleague Liz Klebaner on November 22, 2024 as we present “Environmental Considerations for Right of Way Acquisition: Identifying and Tackling Pre-Acquisition and Post EIR/S Issues” during the IRWA Region 1 Fall Conference and Networking Round-Up 2024. … 

In 1831, the colony of Gonzales requested a cannon for defense that was granted by the Mexican authorities. This cannon was a Spanish made bronze six-pounder. The grant had one condition; the cannon had to be returned when asked. By 1835, the political climate had changed in the area and Mexico had asked the Texians to return the cannon. The Texians response: “Come and Take It”. This led to a Mexican military response against the Texians with the colonists producing a flag of a white field with stitching of a black star, a cannon and the words: COME AND TAKE IT. The Texians faced off ...

Join me on January 24, 2025, as I participate in the “Masters of Trial” panel during CLE International’s 27th Annual California Eminent Domain Conference in Irvine, CA. Our panel will discuss effective direct and cross examination of appraisers and other experts.

CLE International’s California Eminent Domain Conference provides the opportunity to network with attorneys, appraisers, agency representatives, right of way professionals and others from around the state, while you hear all points of view on the most important and timely condemnation issues. I hope to see ...

Investors and developers scour the Southern California real estate market searching for opportunities to buy dated houses that they can demolish and replace with large, modern homes to sell for much more.  A few individuals likely thought they struck gold after inheriting a small bungalow cottage in Coronado, California with panoramic views of the Bay and golf course nearby. The cottage, built in 1924, was the smallest house on the street with the least-utilized lot; it represented both a great opportunity and a bygone era. These soon-to-be developers turned inverse condemnation ...

We’ve reported in the past that public agencies are more frequently demanding certain off-site public improvements to accommodate proposed private developments as a condition of entitlement approval.  These can range from street widenings to accommodate additional traffic, pump stations for additional water capacity, or flood improvements to address drainage or run-off concerns.  Additionally, a new condition facing California developers is dedicating or acquiring open space to mitigate wildfire risk. … 

The regulations implementing the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (the Uniform Act or Act) have not been amended since 2005. In 2019, the U.S. Department of Transportation promulgated proposed regulations. After extensive comment, the final rule was passed and circulated on May 3, 2024. It went into effect on June 3, 2024. This article summarizes some of the major changes to the Uniform Act. … 

When a property owner brings a regulatory taking / inverse condemnation claim based on a city or county’s zoning decisions, the owner often provides context and history, including public statements made by staff, board members or city council members.  Are those public statements protected speech and therefore subject to California’s Anti-SLAPP statute?  A recent California Court of Appeal decision, City of Redondo Beach v. 9300 Wilshire, provides some context on what is and what is not permissible.  … 

Despite California’s record high levels of precipitation in 2023, water scarcity remains a pressing issue. Governments have turned to using the power of eminent domain to acquire investor-owned utilities in an effort to improve water service and costs for their communities. This complex process, known as municipalization, contains significant legal hurdles for governments because investor-owned utilities are uniquely empowered to challenge such takeovers.

In Nossaman’s California Water Views – 2024 Outlook, we explore the legal framework of condemnation actions ...

Jillian Friess Leivas recently represented IRWA Chapter 67 (Orange County) at the 2024 Region 1 Spring Forum in Las Vegas, Nevada as the Chapter’s President-Elect and International Director. IRWA Region 1 encompasses all chapters within California, Nevada and Arizona.

During the forum, Jillian was awarded the IRWA Region 1 Young Professional of the Year Award. The award recognizes association members who have demonstrated a commitment to the industry at the Chapter, Region and/or International level of the association in terms of participation, contribution and service ...

The regulations in 49 CFR Part 24 implementing 42 USC Ch. 61, generally known as the “Uniform Act,” are being updated for the first time since 2005. New regulations are set to take effect on June 3, 2024 (the “Rule”). We will be discussing specific aspects of the new Rule in future posts. Please contact us with any specific questions in the meantime. 

In general, the new Rule provides that caps on certain benefits, limits on waiver valuations and conflict of interest have increased. Cost of living adjustment will be allowed to increase maximum waiver and benefit levels over time ...

Aleene Madikians and I recently authored the article “Mitigating Damages—Condemning Replacement or Substitute Property” for the May/June 2024 issue of the International Right of Way Association (IRWA) newsletter, Right of Way. In the article we discuss, among other topics, severance damages from 'partial takings'. … 

Dodge, duck, dip, dive and… dodge. An interesting case from the United States Supreme Court yesterday. Interesting because of what it says, and interesting because of what it very explicitly declined to say.

The question presented in DeVillier v. Texas, 601 U.S. ___ (2024) was whether the Takings Clause of the Fifth Amendment was “self-executing”. That is, whether a landowner could sue a State for money directly under the Takings Clause, even if there is no statute specifically creating a cause of action (and where the closest statute very expressly does not provide a remedy ...

With its expansion into Texas, Nossaman is enjoying more opportunities to assist public entities with large and significant public works projects.  These projects will help to shape the infrastructure being developed and integrated throughout the United States.  The recent addition of two partners with vast experience in eminent domain law, particularly as applied in the Lone Star State, will fortify Nossaman’s efforts to assist clients with their projects so that they progress seamlessly from start to finish. …

On April 12, 2024, in Sheetz v. County of El Dorado, the U.S. Supreme Court unanimously overruled more than two decades of California precedent, holding that legislatively established development impact fee programs must have an essential nexus and a rough proportionality to the impacts from the proposed development project on which they are being applied. The full ramifications of this ruling are still yet to be decided, however, as the Supreme Court left open the possibility of applying the nexus/proportionality tests in a more deferential manner when the development impact ...

Most private development projects in California trigger some sort of discretionary public approval, whether it be environmental review, zone changes, permits, or other forms of entitlement approvals.  As part of that approval process, public agencies are more frequently demanding certain off-site public improvements to accommodate the proposed private development.  Such improvements could include, for example, street widenings to accommodate additional traffic, pump stations for additional water capacity, or flood improvements to address drainage or run-off concerns.  ...

Procedures governing eminent domain actions differ in some respects from other areas of law. Notably, all issues, except the sole issue of compensation, are adjudicated by the court. This requires the court to decide issues of law before the jury can determine compensation, complicating timing issues even where civil code sections on the matter seem straightforward.

Pursuant to California Code of Civil Procedure § 583.310, “An action shall be brought to trial within five years after the action is commenced against the defendant.” Absent a written stipulation, oral agreement ...

It is spring.  Flowers are blooming; the rivers swell with snowmelt from the mountains; newly thawed Northern ponds welcome the return of their ducks and geese; Florida convulses with an annual migration of revelers.  It is only natural for the mind to turn to one of the two inevitabilities: Taxes.   

Tax time

As the Ides of April approach for individual tax filers, a mad dash to find tax savings is underway.  Many real estate investors and professionals are quite familiar with the tax saving potential of a 1031 Exchange.  Named after a section number of the tax code at 26 U.S.C. § 1031—which ...

The Arizona Court of Appeals recently held that members of a homeowners’ association are not entitled to severance damages to their residential parcels when common areas are condemned.

Property owners in Arizona eminent domain actions are entitled to just compensation. Just compensation includes (1) “the value of the property sought to be condemned” and (2) “[i]f the property sought to be condemned constitutes only a part of a larger parcel, the damages that will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be ...

A public agency’s acquisition of private property can sometimes trigger significant severance damages due to eliminating access, cutting off utility service, or taking a substantial portion of a property’s parking.  As agencies look to get more creative in minimizing exposure to large damages claims, they will sometimes offer up mitigation alternatives, such as providing an alternative access, or new utility service, or replacement parking, with such rights being granted from an adjacent or neighboring property.  These mitigation solutions are often a win-win for ...

When one hears “eminent domain” or “condemnation,” you might envision a governmental agency or utility coming in and acquiring the entirety of a piece of property and leaving nothing behind.  However, often times, condemnation does not require the entire property, but only a portion or rights to use a portion a specific way. So, what is the difference between the various terms of fee simple, an easement, full take, and part take? … 

Join us in Riverside, CA on February 7th as we provide an overview of the eminent domain process, along with best practices for right-of-way acquisition, during the International Right of Way Association (IRWA) Chapter 57 Membership Luncheon. We’ll cover everything from identifying project alternatives to ultimately acquiring specific property.

We will provide an overview of the entire process and illustrate how all of the individual components work together. In particular, we’ll discuss how to effectively navigate the precondemnation process to position for the ...

In California, a fundamental principle of eminent domain law is that an owner of property acquired by eminent domain is entitled to just compensation for the property interests taken (Code Civ. Proc. §1263.010). 

However, what if the acquisition for the public project involves only a portion of the owner’s property interests? This question arises quite often when a portion of an owner’s property is acquired for street or freeway widenings, grade separation projects, expansion of property already dedicated to an existing public use, as well as many other types of public ...

We’ve been closely watching the Sheetz v. County of El Dorado case, which has worked its way up through the California trial and appellate courts all the way to the U.S. Supreme Court. For a quick refresher, the case concerns whether legislatively enacted development impact fees (such as fees for building permits, etc.) are subject to the rough proportionality and nexus requirements (i.e., can a generally enacted permit fee be the subject of an unconstitutional taking). … 

Join me on January 8, 2024, as I present “Rights Included in Rights-of-Way” during “California Highway and Utility Rights-of-Way,” a webinar hosted by HalfMoon Education. During my presentation, I will discuss the condemnation process, landowner rights, maintenance of rights-of-way, alterations and encroachments and different types of rights-of-way used for highway purposes.

HalfMoon Education is a nonprofit continuing education provider whose mission is to develop and sponsor high-quality, timely and competitively-priced continuing education seminars ...

In California, a business operating on real property being acquired, in whole or in part, for a public project may make a claim for loss of goodwill and be entitled to compensation if the business operator establishes the foundational elements: (1) the taking caused the loss, (2) the loss could not be prevented by relocation or other reasonable mitigation measures, (3) the loss is not includable as a reimbursable relocation expense, and (4 ) the loss does not duplicate other compensation being paid.  (Code Civ. Proc. §1263.510(a).)  As part of its affirmative duty to mitigate damages, a ...

This past week I had the opportunity to attend the International Right of Way Association’s (IRWA) Region 1 Fall Forum and Symposium in San Diego, California. On Friday, Brad Kuhn and I presented an update on recent federal and state cases impacting takings, land use and development in California.  On Saturday, I was an attendee at the Fall Forum where IRWA professionals throughout Region 1 (California, Nevada, and Arizona) shared updates on the status of the industry in their area. … 

2023 has been another interesting year in the eminent domain world. We’ve reported on some interesting court decisions, we’ve seen funding make its way to some critical infrastructure projects in California and changing weather continues to make resiliency and natural disasters a hot topic for inverse condemnation law. But before 2023 winds down, there are some exciting end-of-year events and we hope to see you there.  … 

A question that arises with some frequency in our practice is whether a public entity can adversely possess a property interest against another public entity. The general rule of thumb is that a private entity cannot obtain an interest in real property owned by a public entity through adverse possession. This rule is in part based off of the long-established principle nullum tempus occurrit regi, which means "time does not run against the king."

In California, this common law principle has been affirmed and reaffirmed for over a century in our courts and has been codified by the ...