Eminent Domain Report

New subway lines don't come around every day.  They are expensive, complicated projects that take years to plan, finance, and build.  But it looks like major cities on both coasts are working towards new major new subway projects. 

In New York, the Second Avenue Subway Project is the first major expansion of New York's subway system in more than half a century.  The MTA started studying the project in the mid-1990's, issued an Environmental Impact Statement in 1999, and finally broke ground in 2007.  Construction is now well underway. 

In Los Angeles, the proposed project making most of ...

We recently wrapped up assisting with the acquisition of several part-takes of commercial and residential properties for a public transit project.  One of the big issues involved with each of the acquisitions centered on whether the project provided the impacted properties with benefits that would offset the potential severance damages.

By way of background, when only a portion of property is acquired through the use of eminent domain, the acquiring entity is required to pay not only for the portion of the property acquired, but also for any decline in value the remainder ...

The City of Fremont announced that it plans to condemn a small, 1,249 square foot property located at the corner of Warren Avenue and Kato Road in order to facilitate its Warren Avenue Grade Separation Project.

There's nothing particularly notable about the announcement, except for a potential regulatory overlay.  The parcel is apparently owned by AT&T Communications, and even though the property currently lies vacant, AT&T is apparently taking the position that it cannot agree to any deal with the City without first obtaining approval from the California Public Utilities ...

I received an interesting email last week about possible claims against a neighboring property owner who was taking steps in an apparent effort to lower the amount of compensation the agency would have to pay for the property.   I didn't get much in the way of details, but it did get me thinking about how (and why) this might occur, and what someone could do about it.

The first thought that occurred to me is why would a neighboring property owner want to cause the value of property to be lower?  It seems that in most circumstances, the last thing one owner would want is for a low value to be established ...

One of the cases we've been following the entire year is Guggenheim v. City of Goleta.  The case involves a challenge to the City of Goleta's rent control ordinance for mobile homes.  The owner claimed that the ordinance had the effect of transferring the vast majority (as much as 90 percent) of the property's value to the tenants, constituting a taking. 

Last September, the Ninth Circuit Court of Appeals reversed an earlier District Court decision, holding that Goleta's ordinance constituted a taking, and it remanded the case for a trial on the amount of compensation the owner should be ...

On those cold winter nights as the holidays approach, who doesn't pause for a moment to consider the long history between Christmas and eminent domain?  For those who don't spend their time in front of the fire sipping egg nog and contemplating condemnation, I offer these tidbits:

• In August 2010, the Nevada Irrigation District voted to condemn part of a farm owned by Robert Hane.  How does this involve Christmas, you say?  Mr. Hane's farm produces - you guessed it - Christmas Trees.  For more on the story, read the Fair market value? Water district invokes eminent domain, from the Auburn ...

We've previously reported on the Fresno Unified School District's plans to build its $20 million southeast elementary school which requires the acquisition of 20 different parcels.  While it initially appeared that the acquisition of the Foursquare Gospel Church would be a major hold-up, that no longer appears to be the case. 

According to a recent KMPH Fox News article, "Fresno Church Faces Eminent Domain," the District has reached a deal with the Foursquare Gospel Church, and eminent domain will no longer be necessary.  However, the story does not quite end there, as the ...

Both California and federal eminent domain laws set forth obligations on "public entities" or the "government."   When these specific terms are used, do the statutes also apply to public or private utility companies exercising the power of eminent domain?

One example is found in the Uniform Relocation Assistance and Real Property Acquisition Policies Act, which allows a landowner to seek reimbursement for costs and attorneys' fees when a condemnation action instituted by a "federal agency" is abandoned by the "United States."  (42 U.S.C. 4654.)  If a utility company ...

Ever since the Supreme Court issued its infamous 2005 Kelo decision, people have been anxiously awaiting the Court's next opportunity to weigh in on the extent of the government's eminent domain authority and, in particular, the limits (if any) created by the "public use" requirement. 

One of the cases that has been watched closely involves efforts to expand Columbia University in New York.  In Tuck-It-Away, Inc. v. New York State Urban Development Corporation, dba Empire State Development Corporation, the New York State Urban Development Corporation sought to condemn ...

I wanted to provide a quick update on some things about which we've reported over the past few months:

1.  Los Angeles Unified School District v. Casasola (2010) 187 Cal.App.4th 189

In Court Blurs Line Between Goodwill and Relocation Benefits, we reported on the Casasola decision, which expanded upon the earlier decision in Redevelopment Agency of the City of Emeryville v. Arvery Corporation (1992) 3 Cal.App.4th 1357 to hold that business owners cannot recover as lost business goodwill anything that falls within the scope of the Relocation Act, whether or not the losses are actually ...

The City of Rancho Cordova's Redevelopment Agency has been working to implement plans to eliminate blighted conditions along Folsom Boulevard.  As part of those efforts, the RDA filed an eminent domain action to acquire a 9-acre site owned by Lily Company.

Lily Company challenged the RDA's right to take on numerous grounds, including lack of proper blight findings and allegations that the RDA was colluding with the Los Rios Community College District.  We initially reported on the case in an August post, Rancho Cordova Eminent Domain Case Involves Allegations of Contractual ...

The Americana at Brand center in Glendale is a large, outdoor shopping community consisting of over 75 retail shops and 300 condos and apartments.  It opened to the public in 2008.  One would think this would not have been the best time to open up a retail center.  However, apparently in the midst of the recession, the center is doing quite well, and the developer is seeking to expand onto two adjacent properties.   

According to an article in the Los Angeles Times, "Developer wants to expand Americana at Brand shopping center," the developer of Americana at Brand -- Rick Caruso -- has sent a letter ...

According to an article in the Press Democrat, "City moves toward eminent domain for Hwy. 101 interchange," the City of Petaluma is contemplating the use of eminent domain to acquire property necessary for the Highway 101-East Washington interchange expansion.  

The impacted parcels include the land behind the Raley's shopping center, the K-mart center, and vacant land owned by Regency ...

The site selection process for a new school is typically a difficult one, as large acreage is usually needed in the middle of a populated area.  When these two factors are combined, eminent domain often follows.  

According to a recent article in the Fresno Bee, "Fresno Unified moves ahead on southeast elementary school," this is precisely the situation faced by the Fresno Unified School District as it proceeds with building its new $20 million southeast elementary school.  The District needs 8.43 acres, requiring the acquisition of 20 different parcels from 17 different owners.  In ...

Earlier this year, we reported on the decision in Ridgewater Associates, Inc. v. Dublin San Ramon Services District.  There, the Court of Appeal rejected an inverse condemnation claim by a purchaser of a property that suffered water intrusion damage caused by an adjacent waste water treatment facility. 

The court held that the seller's failure to assign the inverse condemnation claim to the buyer, coupled with the fact that the buyer was "compensated" for any damages through payment of a reduced purchase price, left the buyer with no standing to sue in inverse condemnation. 

The buyer ...

According to an article in the Valley News, "Riverside public hearing to consider eminent domain for bridge on Iowa Ave.," the Riverside City Council is contemplating using eminent domain to complete the Iowa Grade Separation Project. 

In order to (1) build the 500-foot long bridge over railroad tracks on Iowa Avenue and (2) construct necessary northbound and southbound ramps, the Project requires the acquisition of portions of seven properties on Iowa Avenue between Palmyrita Avenue and Spring Street.

The City has already begun negotiations with the owners ...

I live in Orange County.  Every time I contemplate a trip to San Diego, I run the calculations: 

• How bad is the I-5 freeway going to be;
• How badly do I need to be in San Diego; and
• Can I find a way to extend/change my schedule to avoid the worst of the traffic? 

Granted, I engage in the same internal debate when I need to head towards Los Angeles, but at least going that direction, I have a number of route choices.  Going to San Diego, it's basically the I-5 or stay home. 

Caltrans is in the midst of a major planning process for possible expansion of the I-5 between La Jolla and Oceanside.  The public ...

This never would have happened five years ago.  A small game company is advertising its latest offering, Eminent Domain, a card game based on the colonization of various planets.

It's hard to imagine a game called "Eminent Domain" before the 2005 Kelo decision made the phrase ubiquitous in American conversation.  Heck, I'm an eminent domain attorney and I'm not convinced I had a clear understanding of what eminent domain was when I graduated from law school.

More interestingly, the title has generated a somewhat heated debate among gamers as to whether the game's true purpose is ...

In an all-too-familiar tale these days, a redevelopment agency is seeking to acquire property as part of its efforts to alleviate blighted conditions in the city, and owners are reacting strongly to the agency's plans to utilize the power of eminent domain where owners are reluctant to sell. 

According to a November 5 article in the Signal Tribune, "Property owners condemn Signal Hill RDA’s use of eminent domain," the situation in Signal Hill pushes all the buttons on both sides of the issue:

1. The redevelopment agency touts numerous successful projects, including converting ...

In response to my earlier post on the Pombo decision, I was asked whether complying with the decision to avoid an award of litigation expenses would expose the agency to an illegal gift of public funds claim. 

This is an issue that arises with some frequency with public agencies, where people are understandably -- and appropriately -- sensitive to claims that they have misused taxpayer money.  In particular, people worry about making an "illegal gift of public funds."  This principle arises from the idea that taxpayer money must be used for public purposes; the government cannot simply ...

In California eminent domain cases (this is an area in which the law varies dramatically from state to state), the property / business owner is entitled to an award of litigation expenses (including attorneys' fees) if (1) it makes a reasonable final demand for compensation and (2) the agency makes an unreasonable final offer of compensation.  (See Code Civ. Proc. § 1250.410.)

How one analyzes "reasonableness" once the jury issues its verdict has been the subject of a number of court opinions.  Tracy Joint Unified School Distract v. Pombo (Oct. 29, 2010) adds to that body of law. 

In ...

According to an article on Recordnet.com, "Water fight goes to court," San Joaquin County water officials are planning to use their eminent domain powers to take thousands of acres of ranch land for a proposed reservoir.  Officials say the project -- called MORE WATER -- is needed to satisfy the County's growing population and to reduce dependence on wells which are depleting the groundwater supply.

The County recently filed a lawsuit in order to gain access to the ranchers' property to conduct surveys and drill test holes.  14 of the 16 landowners have granted the County ...

According to an article in the Orange County Register, "H.B. mobile home park owner fights city's property seizure," the owner of Pacific Mobilehome Park is challenging a street-widening project for which the City of Huntington Beach plans acquire eight mobile homes through the use eminent domain.  The street-widening project will widen Atlanta Avenue between Huntington Street and Delaware Street, and the mobile home park owner claims the project's environmental impacts were not sufficiently studied. 

The City's zoning administrator waived the need for an in-depth ...

Few property owners look forward with any enthusiasm to the date the government finally announces it is moving forward with plans to condemn their property.   But owners who pretend that day will never actually arrive often realize too late that they have missed opportunities to protect their investments.

Eminent domain often proceeds over a very long time-table.  From project conception to right of way acquisition, years may pass, with properties held up in a cruel limbo as owners wait to see if the project really happens, and if so, whether their property will ultimately be impacted. 

In ...

Yesterday, we celebrated the one-year anniversary of our blog's launch.  We were planning to get a cake, but remembering back to what my one-year-old looked like after we put a cake in front of him on his first birthday, we decided to commemorate the occasion by preparing a "top 10" list from our blog's first year.

Admittedly, selecting 10 items was not a scientific process, and "top 10" really became "10 posts I can describe in a single short sentence," but in any event, here it is, the Top 10 Things You've Learned if You've Been Following Our Eminent Domain Blog (by the way, I find it ...

Business goodwill appears to be a hot topic for the California Court of Appeal, as it was the primary issue in the recent LAUSD v. Casasola opinion, and is again the focus of an unpublished decision that came down last week, People Ex Rel. Department of Transportation v. Ahn.

In Ahn, Caltrans condemned a shopping center where Ahn owned and operated a framing store and art gallery.  After Caltrans took possession, the owner transferred to a relocation site.  At trial, Caltrans' goodwill expert determined the business had $26,000 of goodwill in the "before condition," and ...

According to an article in this week's New York Times, "Solar Power Plants to Rise on U.S. Land," the United States has approved two large solar power plants to be built on federal lands.  This is the first time such large plants will be built on federal land, and both are slated for California. 

The first plant is proposed by Tessera Solar and will be built on 6,360 acres in the Imperial Valley.  The second plant is proposed by Chevron Energy and will be built on 422 acres in the Lucerne Valley.  When completed, the two projects could generate enough energy to power as many as 566,000 ...

Just a quick update on yesterday's post about West Oakland involving Kroger's plans to build a store there.  Last night, the City Council unanimously approved changes to its eminent domain policies to allow the city to condemn the property necessary for the planned project. 

While reports of the hearing have somewhat different tones, it is fairly clear that the meeting was well attended, and that audience members were passionate, regardless of which side of the issue they supported. 

As the Sean Maher reports it for the Contra Costa Times in "Oakland City Council changes eminent ...

West Oakland has some notoriously tough neighborhoods, including the large ACORN project area where Black Panther co-founder Huey Newton was killed and an area known unflatteringly as "Ghost Town."  Over the years, it has been the subject of some controversial public works projects, facilitated through extensive eminent domain.  This includes the West Oakland BART station, a major postal facility, and the ACORN housing project.  

An October 4 article in the Contra Costa Times by Brian Beveridge, "'Eminent domain' draws shudders in West Oakland" describes the ...

We've reported in the past about some of the regulatory takings issues created as a result of the Western Riverside County Regional Conservation Authority's ("RCA") efforts to conserve property pursuant to the Multiple Species Habitat Conservation Plan ("MSHCP").  It now appears that those conservation efforts have created quite the turmoil with citizens in the City of Murrieta.

According to a recent North County Times article, "MURRIETA: Landowners frustrated with conservation board, city leaders who refuse to meet," about 100 members have organized a group called the ...

Just before the midnight deadline for taking action yesterday, Governor Schwarzenegger vetoed AB 2531, the bill that would increase the eminent domain authority of the Community Redevelopment Association of Los Angeles.  His late-night message to the legislature was as follows:

To the Members of the California State Assembly:

I am returning Assembly Bill 2531 without my signature.
Redevelopment funds are to be used solely for the purpose of eliminating blight in urban neighborhoods in California cities. This bill would authorize the use of redevelopment funds for projects ...

In May, we reported on the City of Chino Hills' efforts to stop a portion of Southern California Edison's Tehachapi Transmission Project.  The project involves 175 miles of transmission line right of way designed to serve wind farm development in the Tehachapi area. 

Much of the right of way for the transmission lines runs through remote, undeveloped areas.  Though there have been many disputes over the amount of money SCE must pay to acquire any new right of way it needs (much of the project runs along pre-existing right of way), there has been little dispute about SCE's right to ...

Proposed changes to California's redevelopment law have been quietly making their way through the California legislature.  With little publicity, AB 2531, authored by Assemblyman Felipe Fuentes, made its way through the process this summer.  After a series of amendments, AB 2531 was passed by California's Senate on August 12 by a vote of 22-13.  On August 27, it passed California's Assembly, 50-26.

On September 10, the bill was presented to Governor Arnold Schwarzenegger for signature.  Under the California legislative process, the Governor has until September 30 to sign or veto ...

We've previously reported on the City of Imperial Beach's use of eminent domain to displace tenants in the Miracle Shopping Center.  According to a recent  San Diego Union Tribune article, "Eminent domain to begin soon against IB merchant," the City is continuing down that path -- this time with the business South Bay Drugs.  The owner has operated the business in the shopping center for 28 years. 

The City Council voted on Wednesday to move forward with the adoption of a Resolution of Necessity so the eminent domain process could begin.  But the case has a bit of an interesting twist.  

The City of Fontana will meet tonight to consider adopting a resolution of necessity to acquire property for the Citrus Avenue Interchange project.  According to a September 21 article in the The Sun, "Citrus Avenue interchange on Fontana City Council agenda," the City is anticipating that the majority of the funding for the $57.5 million project will come from Proposition 1B and Measure I funds, along with State Transportation Improvement Program funds.  

The City has apparently been in negotiations with the property owner, but has been unable to reach an agreement.  According to the ...

According to a Modesto Bee article, "Stanislaus County Board of Supervisors Watch," Stanislaus County will vote tonight on whether to utilize the County's power of eminent domain, if necessary, to acquire property necessary for the Kiernan Avenue / Highway 99 interchange project.  The County apparently believes it can secure the necessary property much quicker than state transportation leaders.  Construction is scheduled to begin in January 2012.

The County is also hoping to secure $46.5 million in state bonds set aside for Highway 99 improvements, and in order to obtain this ...

According to a Bay Area Biz Talk blog post for the San Francisco Business Times, "Talk of Eminent Domain Stirs Fears in West Oakland," the City of Oakland is contemplating reinstituting its redevelopment agency's power of eminent domain in order to acquire a site for a new Foods Co. (Kroger) grocery store.  

The five-acre site in question is located at the corner of West Grand Avenue and Filbert Street, and is currently home to an industrial warehouse and an autobody shop.  While the proposed grocery store has done much of the negotiating and acquisition itself, it has been ...

One of the most vexing aspects of eminent domain for many property and business owners is the fundamental fact that the owner does not get to decide whether to sell the property.  I cannot recall the number of initial client meetings I've had over the years that began with the client asking "How do I stop this from happening?"

In most cases, my clients are disappointed to hear my answer:  "You can't."  But this answer is overly simplified, because there are actually several grounds for preventing the government from condemning property. 

A recent post on the Biersdorf & Associates eminent ...

The County of San Luis Obispo is considering a new way to finance infrastructure improvements -- the creation of a redevelopment agency.  According to a San Luis Obispo Tribune Article, "Redevelopment agency reconsidered," County supervisors have instructed their planning staff to investigate the pros and cons of instituting such an agency.  

County planners noted that a redevelopment agency could be set up to cover most rural communities, and specifically singled out San Miguel and Oceano as areas that could benefit from redevelopment.  While several individuals noted the ...

Just a reminder for all you eminent domain and right of way practitioners still mentally on summer hiatus.  IRWA Chapter 67 (Orange County) starts its new year next week.  The September meeting is Tuesday, September 14, at the Holiday Inn, Santa Ana/OC Airport, located at 2726 South Grand Ave., Santa Ana CA 92705.

The meeting starts with a "meet and greet" at 11:30.  Lunch commences at 12:00.  We will have a lunchtime presentation from John Ellis of Integra Realty Resources in Los Angeles.  He's going to give us an update on the real estate climate here in Southern California, and I've made ...

For those who didn't get enough of littoral property rights, accretion, and avulsion in reading about this summer's Supreme Court decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, there is a new case making its way through the system. 

In Maunalua Bay Beach Ohana 28 v. State of Hawaii, the court analyzed a 2003 Hawaii law that had the effect of transferring ownership of property created by accretion to the state.   In a split decision, the Hawaii Court of Appeal held in 2009 that with respect to property that existed at the time the law went ...

The use of "government stimulus" spending to spur economic growth has been a point of heated political controversy for the past several years.  A proposal outlined by President Obama over the weekend involves spending $50 billion on the nation's transportation infrastructure, focusing on the aging highway system, rail lines, and airports. 

According to a September 7 Wall Street Journal article by Gary Fields, "Obama in Infrastructure Push,"

At a Labor Day rally in Milwaukee, Mr. Obama said the initiative would be part of a larger effort to fix 150,000 miles of roads, lay or rebuild ...

We reported several months ago about the property owner impacted by the expansion of the Everglades National Park petitioning the US Supreme Court to determine how to treat the government's enactment of tougher zoning standards that decrease the value of property which the government may want to acquire in the future.  The issue presented was whether the government's actions must be the primary cause of the precondemnation depression of the property's market value, or whether there must only be a nexus between the government's actions and the depressed market value.

This is an ...

In Los Angeles Unified School District v. Casasola (Aug. 5, 2010), the Court of Appeal examined the interrelationship between recovery of lost business goodwill pursuant to Code of Civil Procedure section 1263.510 and recovery of relocation expenses pursuant to Government Code section 7267 et seq. 

My colleague, Gale Conner, prepared a good summary of the Casasola case detailing the facts and the Court's reasoning.  The bottom line is that the Court held that items that might be recoverable under the Relocation Act cannot be included in a claim for loss of business ...

For anyone looking to spend more time on eminent domain issues, there are two upcoming events you may want to consider. 

• For those looking for a one-day commitment, I recommend the IRWA, Chapter 1 2010 Fall Education Seminar, which is taking place on October 26 at the Quiet Cannon in Montebello.  I don't have the full list of speakers yet, but it's always a good event, and my partner, David Graeler, is Chair again this year. I'll be talking about the interrelationship between goodwill and the Relocation Act, using the recent Casasola opinion as a jumping off point (look for a post about ...

The California Court of Appeal issued an interesting unpublished decision yesterday addressing a number of eminent domain issues, ranging from right to take challenges, entitlement to goodwill, severance damages, and jury instructions.  The case, City of San Luis Obispo v. Hanson, garnered enough attention that several third parties filed Amicus briefs with the Court.

By way of background, the City of San Luis Obispo decided to realign a road partly in order to accommodate a newly approved Costco development.  The realignment required right-of-way acquisition from a property ...

The City of Laguna Woods had been leasing the building it used for City Hall on El Toro Road for a number of years.  In 2005, the City -- apparently tired of leasing the space -- decided to acquire the property by using its power of eminent domain.  After proceeding to trial, a jury determined this week that the fair market value the City is required to pay for the building was $6.43 million -- $2.78 million more than the City had initially offered.

According to an Orange County Register article, "Laguna Woods must pay $6.4 million to take City Hall," the issues that resulted in the ...

On its face, the City of Rancho Cordova's eminent domain action to acquire a vacant parcel for redevelopment purposes is a familiar story. The government wants to seize private property in order to turn the property over to a third party for redevelopment.  This is the basic fact pattern that caused the national eminent domain uproar that started when the Supreme Court issued its 2005 Kelo decision.

Unlike in Kelo, however, in California the government typically cannot take such steps without making appropriate findings that the property being condemned is "blighted."  This ...

The City of Glendale plans to vote tonight on a plan that would extend eminent domain authority in its central redevelopment area for an additional 12 years.  According to an August 10 article in the Glendale-News Press, "City Set to Extend Eminent Domain," the agency's eminent domain authority is currently set to expire next month. 

According to the Director of the Community Redevelopment & Housing Department, Philip Lanzafame, eminent domain is a key tool if redevelopment projects are to succeed:  "If you didn't have this, some property owners could hold the community hostage."

This ...

We've been following the City of Barstow's potential reinstatement of its redevelopment agency's power of eminent domain, most recently noting that a special hearing was set for August 5.  According to a Desert Dispatch article from over the weekend, "Eminent domain power reinstated for parts Riverside Drive and east Barstow," the reinstatement was only partly successful:  the redevelopment agency can now use eminent domain on commercial property in Project Area 1 (the eastern part of the City at the end of Riverside Drive near the sewer plant), but a deadlocked vote caused the ...