Eminent Domain Report

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

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. …