Posts tagged Easement.
Development Conditions Requiring Off-Site Property Acquisitions Not Subject to Takings Law?

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.    

Recently, the owner of a mixed-use development project in San Diego ...

What is the Difference Between Fee Simple, an Easement, Full Take, and Part Take?

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? … 

Posted in Court Decisions
Conveyance Language Determines Scope of Rights

The language in conveyance and real estate documents impacts the type of property interests that are created and conveyed and defines the scope of those interests.  The importance of documentary language was crucial in a recent unpublished California Court of Appeal case, Canyon Vineyard Estates I, LLC v. DeJoria, 2022 Cal.App.Unpub. LEXIS 3414, which discussed issues of fee conveyance, conservation easements, and subordination issues.

Background

A property owner owned over 400 acres of undeveloped land along the Santa Monica Mountains and the Pacific coastline.  The owner ...

2021 Eminent Domain Case Law Year in Review

Throughout all of the ups and downs in 2021, there have been multiple developments on the eminent domain front, including the special occasion where the U.S. Supreme Court heard a takings case. Outside of case law, 2021 saw the Infrastructure Investment and Jobs Act passed, which aims to provide federal funding for infrastructure projects for many years to come. All in all, 2021 was a fairly busy year for right-of-way and eminent domain practitioners.

Click here for summaries of the prominent cases and developments in eminent domain from 2021...

Posted in Court Decisions
Balancing the Grantor and Grantee’s Rights to Use an Easement

Some easements will contain express language that delineates the respective rights of the grantor and grantee to make use of the easement.  Other times, even absent express language, a grantor can be prevented from using an easement if such use would unreasonably interfere with the rights of the easement holder.  For further discussion of an example when express easement language is not needed to limit the use of the easement by the grantor, check out our prior post entitled “Utilities Have the Right to Remove Trees Within an Easement.” …. 

Posted in Right-of-Way
What Happens When Railroad Right-of-Way is Abandoned and Turned into a Public Trail System?

Throughout the United States, old railroad corridors are being abandoned and converted into other uses, such as hiking, biking or other trail purposes. This converted use makes sense, as it is difficult to otherwise compile a long stretch of right-of-way that would be needed to create such trails. But are adjacent property owners entitled to some sort of just compensation when this conversion takes place?  The answer is maybe. 

Before a railroad operator can abandon its right-of-way, it must first secure approvals by the Surface Transportation Board. When that abandonment process ...

Tune in to Nossaman’s Recent Land Use Podcasts

Providing listeners a convenient and concise medium to access timely reports on important land use topics, Nossaman’s recent podcast offerings make a great addition to your professional playlist.

First, check out Nossaman’s own Digging Into Land Use Law podcast, which covers the development of all things in, on or above the ground. Recently, I recorded the episode “Valuation and Damages: Assessing COVID-19’s Economic Impact.” Changes in how businesses operate, restrictions on property use and reduced revenues brought on by mandated closures due to COVID-19 have had ...

Temporary Construction Easement Expirations During the COVID-19 Pandemic

During Nossaman's recent webinar concerning Transit & Transportation Project Success in the Wake of the Pandemic, I addressed Temporary Construction Easement (TCE) issues. For a re-cap of my presentation on this topic please click here.

Additionally, to view our entire webinar "A Path to Transit & Transportation Project Success in the Wake of the Pandemic: A Panel Discussion Among Legal Professionals," please click here to access the full on-demand recording.

We continue to monitor developments related to COVID-19 and are available to respond to questions and discuss issues ...

WEBINAR: A Path to Transit and Transportation Project Success in the Wake of the Pandemic

For those of you involved in the transportation sector, we invite you to join us on Wednesday, June 3rd for a discussion on planning, procurement and financing strategies that can be implemented now to support timely project delivery in the wake of the COVID-19 pandemic.  We are planning a very interactive webinar where ample time will be set aside to answer questions received from attendees both prior to and during the event.

Topics that will be covered include:

  • How to prepare now to efficiently and effectively move projects forward
  • Procurement and contracting strategies that enable ...
Right of Way Professionals Opine on COVID-19 Impacts to the Profession

On April 1, Nossaman’s Eminent Domain Group hosted a webinar to discuss the impacts COVID-19 is having on the Right of Way industry.  First, I’d like to thank the people who attended, many of whom added thoughtful questions to the discussion.  It’s clear a lot of people are giving these issues a lot of thought.  Second, obviously things continue to evolve at a breathtaking pace, and even by the time this post goes from being drafted to appearing on the blog, things are likely to change. 

Note that this post is not meant to recap the things we discussed at the webinar.  If you weren’t able to join us and want to review what we covered, feel free to download the COVID-19 PowerPoint we used, or watch the entire recorded webinar.  No, the purpose of this post is to provide some insights as to what other right of way professionals are thinking about a few of these issues.  During the webinar, we asked several poll questions, and since the Nossaman team found the results interesting, I’m hoping some of you will as well ...

Posted in Right-of-Way
Navigating COVID-19 for the Right of Way Industry

COVID-19 has undoubtedly upended the world, including the way we do business and the future of our economy. We have received a number of questions and concerns from clients in the right of way industry on how the current pandemic affects the way we do business, and what to expect going forward. Please read on for links to helpful resources...

Posted in Videos

We are pleased to provide the next installment of our video series from Nossaman’s 2019 Eminent Domain Seminars.  In this segment, Eminent Domain Partner and Litigation Department Chair David Graeler discusses managing Temporary Construction Easements when there is a project delay.

Posted in Videos

We are pleased to provide the next installment of our video series from Nossaman’s 2019 Eminent Domain Seminars.  In this segment, Eminent Domain Partner Artin Shaverdian discusses best practices when abandoning take areas and narrowing project scope.

Posted in Events

We welcome you to join our Partners at several upcoming presentations on eminent domain topics taking place near and far.

First, Nossaman's Eminent Domain & Valuation Practice Group Chair Brad Kuhn will be presenting during Nossaman's 2019 Land Use Seminar on May 21st, in Costa Mesa, CA.  Brad will be part of a discussion concerning the very timely topics of Managed Retreat and Sea Level Rise.  This is an area of great interest for both private landowners, cites and towns, and public agencies alike, and the presentation will provide an overview of the current proposals and ...

Posted in Court Decisions
Utilities Have the Right to Remove Trees Within an Easement

Many public agencies and utilities have easements for water or gas pipelines or electric transmission lines.  Those easements typically contain express rights to construct, operate, and maintain the facilities, including rights of access; but oftentimes the easements are silent on what rights are reserved to the private property owner, including whether the owner can place trees or other improvements within the easement area.  As utilities and public agencies are undertaking more thorough efforts to protect and maintain their rights-of-way, they are commonly seeking to remove ...

Posted in Appraisal, Events, Videos

Welcome to the first installment of our video series from Nossaman’s 2019 Eminent Domain Seminars.  In this segment, Nossaman Partner Rick Rayl discusses the initial appraisal process and benefits of a strong appraisal.

Posted in Events

On November 1, Nossaman Eminent Domain Partner Bernadette Duran-Brown will be Co-Chairing the Southern California Appraisal Institute’s 51st Annual Litigation Seminar.  Additionally, Ms. Duran-Brown will be joined by Brad Kuhn, Chair of Nossaman’s Eminent Domain & Valuation Practice Group, who will be participating in a panel discussion concerning Easement Valuation.

The seminar will be held on Thursday, November 1st, at the Omni Hotel, 251 South Olive Street, Los Angeles.  The event will kick off with registration and breakfast at 7:30 a.m., and will also include luncheon ...

Posted in Valuation

Acquiring a fee interest in property seems to be so out-of-style.  Nearly every linear infrastructure project I work on now involves the acquisition of various types of easements, whether its a typical temporary construction easement, access easement, street/highway easement, or transmission line easement, or a more complicated aerial easement, parking structure easement, or floating easement.  The scope and terms of these easements can have massive ramifications on compensation, and particularly severance damages to impacted properties.  If you're interested ...

Posted in Valuation

When public agencies acquire property for public projects, many times only a portion of the property is required.  And, the government usually seeks various types property interests:  (i) permanent easements for street purposes, drainage, utilities, slope, aerial, or access rights, (ii) temporary construction easements, or (iii) fee interests, to name a few.  One common misconception among agencies is that acquiring an easement is completely different than acquiring the property in fee.  In some cases, it can be vastly different, but in others, depending on the scope of the ...

Posted in Court Decisions

"Motions in limine" are motions made shortly before trial, and they're typically filed in an attempt to limit the introduction of evidence to the jury.  They are a powerful tool in eminent domain proceedings, and can be used to limit an appraiser's comparable sales, valuation methodology, or even the expert's entire testimony.  In a recent unpublished California Court of Appeal decision, Verizon of California v. Carrick (2014 Cal. App. Unpub. LEXIS 5030), the Court even approved of the use of an in limine motion to determine whether a party had a compensable interest in the property ...

Posted in Projects

On June 10, 2014, President Obama signed into law the Water Resources Reform and Development Act of 2014, which, among other things, streamlines the U.S Army Corps of Engineers' infrastructure authorization process, accelerates project delivery, and authorizes federal funding for a variety of projects, including projects in California.  Among these California projects is the San Clemente Shoreline project, which includes construction and continuing maintenance of coastal protection measures along the San Clemente shoreline. 

Under the proposal that ...

Posted in Court Decisions

In the latest in a string of recent U.S. Supreme Court cases that impact right of way issues, on Monday the Court issued its opinion in Marvin M. Brandt Revocable Trust v. United States (Case No. 12-1173, March 10, 2014).  The issue in Brandt involved whether the U.S. Government retained a reversionary interest in the easements it granted to railroads pursuant to the General Railroad Right-of-Way Act of 1875. 

The decision would impact, in particular, the "rails-to-trails" program, designed to convert old, abandoned railroad rights of way to bike trails.  Under the program, the ...

Posted in Court Decisions

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 ...

Posted in Projects

According to a San Diego Union Tribune article that was published over the weekend, the City of Encinitas has turned to the use of eminent domain to complete a $1.3 million drainage improvement project for an area impacted by flooding.  The article, "Encinitas to seize land for drainage work," reports that the city has reached a deal with six of the seven impacted property owners.  The hold-out property owner will face having a portion of its property condemned so the city can expand an already existing easement and install a drainage pipe under a horse trail. 

The hold-out ...

Posted in Projects

In February 2009, the city of American Canyon filed an eminent domain lawsuit in Napa County Superior Court to acquire vacant property on which the city intended to build two water storage tanks.  According to a Napa Valley Register article, "AmCan settles deal for water tank property," the city has now settled the lawsuit for $542,909.  In return, the city obtained 3.2 acres of unimproved land and an additional four acres for permanent and temporary easements.

It appears that the settlement was prompted by the court's recent ruling that the property owner was not entitled ...

Eminent Domain Report is a one-stop resource for everything new and noteworthy in eminent domain. We cover all aspects of eminent domain, including condemnation, inverse condemnation and regulatory takings. We also keep track of current cases, project announcements, budget issues, legislative reform efforts and report on all major eminent domain conferences and seminars in the United States.

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