Eminent Domain Report

We've been following the status of highway and transportation funding for quite some time, previously noting that Congress kept kicking the can down the road without agreeing on a long-term solution.  Finally, that is no longer the case, as our colleagues on Nossaman's Infra Insight Blog note that the House and Senate Conference Committees have agreed on a compromise $305 billion five-year surface transportation authorization: the Fixing America’s Surface Transportation (FAST) Act, which is headed to the White House in the next few days.  Check out Billy Moore's post the Infra ...

When the government promises to do one thing and then does another, it usually has myriad excuses.  Sometimes it claims that its staff (the people with whom the opposing side are typically interacting) cannot bind the agency.  Other times, it claims that it cannot contractually agree to things that take away key government functions (e.g., the government cannot contract away its right to condemn property).  But every once in a while, the government gets stuck, even in the absence of a formal written agreement.

In HPT IHG-2 Properties Trust v. City of Anaheim (November 20, 2015), the Court ...

For decades, California public agencies have utilized a statutory "right of entry" procedure to gain access to private property to conduct investigations and testing before deciding whether to move forward with acquiring the property. (See Code of Civil Procedure section 1245.010 et seq.) That process was thrown into flux in 2014 with the Court of Appeal’s decision in Property Reserve v. Superior Court, which struck down an agency’s efforts to conduct precondemnation investigation and testing, concluding that any significant physical intrusion onto private property ...

For several years, we've been following an eminent domain lawsuit in Marin County involving Caltrans' acquisition of 34 acres for a $29.7 million interchange project at the Redwood Sanitary Landfill, which would widen the overpass over Highway 101 and install new frontage roads on both sides of the highway to create safer conditions for traffic going in and out of the landfill.  After a 20-day trial, the litigation has finally ended with a jury verdict that appears to be close to a split between the property owner's appraisal and Caltrans' appraisal.

According to an article in the ...

In an unpublished opinion filed this week, the California Court of Appeal confirmed two fundamental evidentiary rules related to eminent domain matters:

1. A witness intending to testify to an opinion of value must exchange a statement of valuation data; and
2. A witness will be precluded from testifying to a comparable sale if it is determined by the court that the comparable is not comparable and would confuse the jury.

Before we delve into the case, here’s a basic reminder of California law as it pertains to these two issues:

With respect to the court’s first finding, California Code of ...

Most of us are at least vaguely familiar with the tax on gains from the sale of property.  Many of us know that when property is sold voluntarily and the funds re-invested, the gain may be deferred under Internal Revenue Code section 1031.  What is sometimes overlooked is the taxability of gains when property is sold involuntarily, i.e., condemned.  As we posted several years ago, Internal Revenue Code section 1033 contemplates just such a situation, and provides some advantages over a section 1031 exchange: An owner has more time to re-invest and may actually hold the proceeds pending that ...

California's heat-wave continues, and so does the drought.  With water becoming more and more scarce, the topic of water supply and how to value water rights is becoming a key issue in California.  If you're interested in these issues, International Right of Way Association Chapter 57 is hosting is fall seminar this Friday, October 14, titled "Water Supply & Impacts."  There are some great speakers lined up to discuss California's water supply, how to value flowage and drainage easements, and how water can impact a property's highest and best use.

And if you're interested in a ...

It's not every day you're involved in a successful eminent domain case before the California Court of Appeal.  It's even more unusual when the case deals with a number of interesting legal issues, such as the enforceability of a waiver of just compensation, the compensability of a license, the breadth of the "project influence rule" for purposes of a property's valuation, and the substantial impairment of access test.  I was fortunate enough to have dealt with all these interesting issues in a single case, Los Angeles County Metropolitan Transportation Authority v. KBG I Associates ...

We've been closely watching Assembly Bill 2 work its way through the legislature for most of 2015, and last week, it was finally signed by the Governor.  What does it mean?  You can find a detailed analysis by my partner, Bernadette Duran-Brown, in our recent E-Alert, but generally, it means redevelopment is back in California.

AB2 allows local governments to create Community Revitalization and Investment Authorities (CRIAs), which will have the power to issue bonds, provide low-income housing, prepare and adopt a revitalization plan for an area, and acquire property ...

Back in May, we provided an update on the status of AB2, the bill which would create Community Revitalization Investment Authorities, (see here).  Things were relatively quiet over the summer but this month has the bill seeing a lot of action: It was passed by the state senate on September 9, passed by the assembly on September 12 and has been sent for final review before hitting the governor's desk for signature.  As we discussed previously, Governor Brown vetoed the last iteration of this bill because the bill vested the program in redevelopment law, and the new bill does not.  While he ...