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 easements, franchise rights, or other recorded interests that may authorize at least some of the planned work. A careful review of title records, conveyance documents and easement language is critical. In some cases, the existing rights may already allow the planned project. In others, the scope may be narrower than anticipated. A condemning entity that assumes too much under an existing easement may face claims for trespass, inverse condemnation or excessive use.

Permanent Project Needs

Once the scope of existing rights is determined, the next step is identifying the permanent interests required for the proposed project. This could mean fee simple acquisition of an entire parcel or permanent easements. The nature of the permanent right should match the operational needs of the proposed project. For example, a public agency may only need a subsurface easement for a buried pipeline, rather than full ownership of the property above it. Matching the terms of the permanent acquisition to the actual project requirements reduces costs, limits the potential for severance damages and heads off any potential right to take challenges.

Temporary Construction Easements

Even if the project’s permanent footprint is small, construction activities almost always require additional temporary rights. Temporary construction easements are often necessary for workspace, equipment movement or trenching. Without them, contractors may find themselves without legal authority to access the land needed to build the proposed project. These temporary rights should be carefully described — both in scope and duration — to avoid disputes with property owners.

Staging and Laydown Areas

Similar to the purpose of temporary construction easements, large-scale projects often require significant space for staging construction equipment, storing materials and parking workforce vehicles. Occasionally, a condemning entity will place the responsibility for securing staging areas on the project contractor.  But, this could risk the potential that a claim is raised that the use of the staging area violates CEQA if it was not properly studied in the environmental clearance for the project. As such, agencies should identify staging needs early, acquire the rights as temporary easements or leases and clearly define the restoration obligations once construction is complete.

Access Rights

Access is another commonly overlooked issue. Without explicit access authority, a condemning entity may not be able to legally reach the project area. Access rights can be acquired through easements, licenses or agreements, but such rights should be secured before construction begins to avoid delays and exposure to liability.

Why Early Planning Matters

Failing to secure the right property interests at the outset can have serious consequences. If a condemning entity overlooks temporary construction rights, staging areas or access easements, it may face project delay claims from contractors, unanticipated change orders or disputes with property owners. Worst case, the condemning entity may find itself without legal authority to proceed, forcing it to go back to the beginning and restart the entire condemnation process. That restart can add months or even years to the project schedule and significantly increase costs. Early planning, by contrast, ensures that the condemning entity secures all necessary rights the first time, helping projects move forward smoothly, without additional costs and minimizing risk of delay.