Eminent Domain Report

California eminent domain law generally provides that a government agency's impairment of a property's access is not compensable unless the impairment qualifies as "substantial".  Dozens of cases have addressed access impairment claims raised by property and business owners both in the traditional eminent domain context and through inverse condemnation actions, and while there are some general guidelines that can be established, many times the determination of whether an impairment qualifies as "substantial" will depend on the particular facts of the case.

Take for ...

When analyzing potential liability for a regulatory takings claim, most land use and eminent domain attorneys immediately look to the three-prong test set forth by the U.S. Supreme Court in Penn Central Transportation Co. v. New York City (1978) 438 U.S. 104.  Those three factors include:

• the economic impact of the regulation;
• the extent to which the regulation has interfered with distinct investment-backed expectations; and
• the character of the government's regulation.

Unfortunately, it's much easier said than done.  Practitioners and courts alike have struggled ...

There's an odd story unfolding in Mendocino County's Brooktrails Township.  It dates back to when Lake Emily was originally built in 1972, where its development apparently resulted in the partial taking of a number of properties.  But the township never paid for the acquisitions.  It is unclear how or why the owners let this slide.  (My first thought was perhaps no one noticed; but the takings were rather large -- one owner alone lost 1,300 square feet of property.)

Fast forward to more than thirty years later.  In 2006, the township decided to raise Lake Emily several feet, which would further ...

We've been following the Ninth Circuit Guggenheim case for more than a year.  That Court's change in its holding between the initial decision by a three-judge panel and the subsequent en banc decision, coupled with the considerable attention the decision received, led many to think the case was ripe for Supreme Court review. 

Today, we learned that the Supreme Court denied the owner's Petition for Writ of Certiorari, meaning the en banc Court's decision will stand.  (As a reminder, that opinion held that the City of Goleta's rent control ordinance did not constitute a taking, despite the ...

When eminent domain attorneys think of just compensation in the context of an eminent domain case, we're typically thinking about the value of what we can see:  the dirt itself; and anything built on that dirt.  But every so often, a property's real value lies not in what is on the surface, but what sits below the surface.

A recent post by the Biersdorf law firm, Mineral Rights in Eminent Domain Cases, reminds us about this often overlooked issue.  The post contains a nice summary of when and how these issues can arise, and I won't repeat all of what they have to say.  The bottom line is that when a ...

Last week was quite busy in the world of California eminent domain, and the start of this week appears to be no different.  A few updates:

• International Right of Way Assocation (IRWA) Chapter 67 is holding its annual, half-day seminar on May 10 at the Holiday Inn in Santa Ana (sorry for the late notice).  The seminar is focused on mobilehome acquisitions and appraisals, and there are a number of great speakers lined up.  (I'll also give a quick update on the City of Los Angeles v. Plotkin decision involving precondemnation damages.)  I hope to see you there.

• The Marysville Joint Unified ...

According to an article by Ken Carlson in the Modesto Bee, "Modesto will try eminent domain," the Modesto City Council this week voted 6-0 in favor of utilizing eminent domain to acquire easements necessary for the widening of Roselle Avenue.  The remaining hold-out properties include part-takes from a seven-acre ranchette and a two-and-a-half acre vacant lot.  The owner of the ranchette, Daniel Nickles, claims the City's survey is flawed, and its $15,000 offer is less than a tenth of fair market value.

The acquisition if Nickles' property includes a 5-foot by ...

I read a really interesting blog post by Robert Thomas, 10th Cir: Landowner Not "Prevailing Party" Even Though They "Won $3.8 Million -- Much More Than The Government Ever Offered Them".  It describes a recent 10th Circuit decision that denied the property owner an attorneys' fees award where (1) the property was valued at trial at $3.8 million and (2) the government's offer was a mere $186,500.  What caught my attention was the mechanism by which the federal courts award fees under the Equal Access to Justice Act (EAJA), as compared to the fee-shifting rules in California. 

Under the EAJA ...

The U.S. Court of Appeals for the Federal Circuit recently issued an interesting opinion which addresses the question of whether or not a government agency's application of the Endangered Species Act can trigger a property owner's Fifth Amendment Takings Claim.

My colleague Ben Rubin has a more detailed post about the case, Klamath Irrigation District v. United States, on our firm's Endangered Species Law and Policy Blog.  More generally, the Klamath Irrigation District case analyzes whether the US Bureau of Reclamation's decision to reduce water delivery to farmers ...

As we have previously reported (Fate of Redevelopment Remains in Limbo), the bills to eliminate redevelopment agencies have languished due to Republican opposition.  With so many redevelopment agencies scrambling to use or secure redevelopment funds in an effort to protect them from being taken by Sacramento and with shortfalls in property tax revenues due to declining property values, redevelopment agencies are no longer as tempting a target for bridging the State’s budgetary shortfall.  

While redevelopment agencies may survive this budget cycle, the fight over their ...