Eminent Domain Report

We have reported several times on the City of Barstow's efforts to renew its Redevelopment Agency's eminent domain authority, but Barstow residents apparently remain skeptical.  A public meeting in April left many dissatisfied with the City's efforts, and the City's Council's effort to address the issue in May led to a deadlock. 

Now, the City has scheduled an additional public meeting for this week in anticipation of the City Council's August 5 special meeting on the issue. 

According to a July 25 article in the Desert Dispatch, "City to attempt second eminent domain meeting ...

According to an article in the Californian, "Salinas mayor: Beat blight, grow tax base," the City of Salinas is slated to vote tonight on whether to expand three Salinas redevelopment zones.  The city is considering such a move in order to grow property tax revenues as assessed property values in the area rise.

The Mayor of Salinas, Dennis Donohue, believes business created in the redevelopment zones could bring an influx of between $5 million and $15 million annually in sales and occupancy taxes.  He is quoted as saying:  "We have to expand our tax base, and this is a possible tool to do it."  ...

With plans to demolish the old Carriage Square shopping center and rebuild it with a Lowe's, the City of Oxnard was on the verge of passing a resolution of necessity to acquire by eminent domain the leasehold interests of one of the few remaining tenants of the center.  However, according to an article by Scott Hadly, "Oxnard, credit union likely to avoid eminent domain clash," the City's threat of eminent domain appears to have resulted in a deal with that tenant, Pacific Oaks Credit Union.

In order to force the tenant to relocate and give up its rights under its lease, the City ...

Most of the media surrounding eminent domain -- and eminent domain for redevelopment purposes in particular -- involves claims of eminent domain abuse and grass roots efforts to limit the government's ability to condemn property. 

In the City of Ukiah, however, local business owners are apparently taking the opposite stance, urging the City to reinstate its eminent domain powers that lapsed in 2001 to deal with a blight situation that business owners believe are hurting them.  We initially reported on the issues with the Palace Hotel back in Februrary, but a July 9 article in The ...

According to an ABC news story, "Threat of Eminent Domain Raises Tempers at City Hall," residents of downtown Fresno are up in arms about the City's effort to extend its redevelopment rights.  While City Council members tried to assure residents that the use of eminent domain would be a "last resort," those in attendance at the council meeting were unappeased. 

In particular, residents complained that the City's plans are actually limiting efforts to improve the area because no one wants to spend money on a property or business when it is unclear what the City is going to do with the ...

Five years ago today, the Supreme Court announced its decision in Kelo v. City of New London, triggering perhaps the most broad sweeping eminent domain reform effort in U.S. history, along with tremendous critical commentary -- including, as just one example, an August 2005 piece on Forbes.com titled Eminent Disaster.

Quite frankly, I'm a bit bored by the decision after five years (I can't begin to count the number of times I've explained the decision and what it means to clients, at seminars and conferences, and on this blog).  However, others are marking the occasion with ...

Last fall, we told you about a key rent control / takings decision, Guggenheim v. City of Goleta, in which the Ninth Circuit held that a rent control ordinance consituted a taking.  In March, we reported that the Ninth Circuit had ordered an en banc hearing of the Guggenheim case. 

Yesterday, the Court held the en banc hearing, and while it may be some time before the Court issues its opinion, the hearing itself may provide some good insights about what may happen (and what it may mean in the larger context of regulatory takings claims).  

Very generally speaking, the Court was critical of ...

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 ...

The Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection case received considerable attention both before the Supreme Court agreed to hear it, and following the very colorful oral argument before the Court last December. 

At issue was whether Florida's efforts to restore some of its beaches through depositing 75-feet of sand seaward of the high-tide line rose to the level of a taking due to the restoration work's causing former beach-front owners' property lines to be moved further away from the ocean water.  

What made the case even ...

One of the big issues in eminent domain over the past five years has been the role of blight in justifying eminent domain for redevelopment purposes.  The seminal decision (that started all the ruckus) -- Kelo v. City of New London -- involved the use of eminent domain for redevelopment purposes where the city did not even pretend it was acting to eliminate blight.

Kelo had little direct impact on California's eminent domain law, because even before the Supreme Court issued its opinion in 2005, California's law allowed eminent domain for redevelopment purposes only upon a proper showing ...

From 1901 to 1961, the Pacific Electric Railway -- or the "Red Car" -- operated as one of Southern California's primary mass transit options, connecting Orange and Los Angeles Counties in a large series of rail corridors.  Now, officials are examining ways to reuse the West Santa Ana Branch Corridor, an abandoned 20-mile rail corridor running from Santa Ana to Paramount. 

According to a June 14 Orange County Register article, "Is reusing the old Pacific Electric Railway a possibility?, the hope is that someone can find a way to use the abandoned rail line to ...

We've previously reported on the City of Vista's moving forward with the use of eminent domain to acquire the Riviera Motel and other properties in order to assemble property for an auto mall.  It appears that the eminent domain dispute has now reached a resolution, as the North County Times is reporting that Vista city council approved a settlement with the motel owner and another nearby property owner.

According to the article, "VISTA: City approves $3.2 million in property purchases," the Riviera Motel owner is receiving compensation of $1.65 million for the .71-acre ...

The City of Lodi held a special meeting of its City Council this week to talk about options for a revised Redevelopment Agency.  And, even though (1) the City has already enacted protections against using eminent domain for redevelopment purposes, and (2) the proposal includes no eminent domain authority, it appears residents are still up in arms over the issue. 

According to a June 10 article by Maggie Creamer of the Lodi News-Sentinel, "Eminent domain a major concern at Lodi City Council's redevelopment meeting," the public appears more concerned with the threat of eminent domain ...

The City of Newport Beach is working on a plan to widen Jamboree Boulevard adjacent to State Route 73 (the northern end of the San Joaquin Hills Toll Road).   The city has acquired much of the property needed for the larger right-of-way, but has not been able to reach agreement with the owner of the Back Bay Court shopping center.   On Tuesday night, the city authorized proceeding with an eminent domain action to acquire the property.

According to a June 9 Orange County Register article by Jeff Overley, "City OKs using eminent domain on mini-mall" ...

A recent post on the Biersdorf & Associates Eminent Domain Blog discussed criteria for hiring an eminent domain attorney.  While reading the post, I found myself agreeing with much of what they have to say, and since finding a qualified eminent domain attorney can be a tricky process, I thought I would pass it along.  That said, I disagree with some of what they say, so I also wanted to offer my own viewpoint.

Biersdorf breaks the inquiry down into three steps ...

Sorry you haven't seen a post from me in a few weeks.  My wife and I just had our first child (a future super star eminent domain attorney, of course), and I've been on "dad duty."  My colleague Rick Rayl has been holding down the blog fort, although upon my return I see he's been blogging about things such as Canadian companies and mining rights in Nevada.  Now that I'm back, how about some California eminent domain news?

In the article "Sanitation Company Eyes Country Club Property," Tehachapi News is reporting that the Brite Canyon Resource Recovery (a division of the Golden ...

Last week was a fairly slow week for California eminent domain news, but I came across an article about a case that seems interesting enough to warrant a brief discussion, even if it has no direct application in California. 

Fronteer Gold, apparently a Canadian-owned company with a division formed under Delaware law, is seeking to condemn property in Nevada to help implement its plans for the Long Canyon gold mine. 

You might wonder how a private company, under Canadian ownership, can condemn property from private owners in Nevada.  Apparently, Nevada law contains a provision that ...

Earlier this week, Chino Hills voted 3-0 (with two members abstaining for conflict reasons) to appeal an earlier court ruling that the Public Utilities Commission has "exclusive jurisdiction with regard to the right-of-way property rights issue between the City and SCE regarding the Tehachapi Renewable Transmission Project route through Chino Hills."  

Southern California Edison's Tehachapi Renewable Transmission Project is a massive, $1.8 billion project designed, in large part, to connect wind farms in the Tehachapi area to the main electrical grid.  The project ...

Both Chapters 57 and 67 of the IRWA have June meetings upcoming (their last meetings before the summer hiatus).  Details are:

• June 2, 2010:  Chapter 57 is meeting at the Riverside Convention Center, located at 3443 Orange Street, Riverside.  The speaker will be Ken MacVey, an eminent domain attorney with Best, Best & Krieger in Riverside.  Contact Communications Chair Jan Spindler for more information.
• June 8, 2010:  Chapter 67 is meeting at the Holiday Inn, Orange County Airport, located at 2726 South Grand Avenue, Santa Ana.  We will have two speakers, Ricky Rodriguez from Caltrans ...

One interesting valuation issue eminent domain attorneys and appraisers run into in California is when a "special use" property -- such as a church or school -- faces condemnation.  How does one value such a property when there is no relevant market or comparable sales to rely on? 

The Legislature enacted Evidence Code section 824 to deal with such situations, specifically providing that such special use properties can be valued based on a reproduction or replacement cost analysis (i.e., the cost of purchasing replacement land, making the land suitable for the same use, and the cost of ...

A May 14 decision by the Ninth Circuit Court of Appeals clarifies the rules regarding when a plaintiff may sue for inverse condemnation in federal court.  In Adams Bros. Farming v. County of Santa Barbara No. 09-55315 (May 14, 2010), the Court rejected an inverse condemnation claim brought against the County, where the County allegedly effected a taking by improperly designating part of the owner's property as wetlands. 

The case involves a long, fairly tortured history that dates back to the late 1990's, when the County (apparently erroneously) designated about 95 acres of "Rancho ...

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 ...

A decision this week by the California Court of Appeal holds that a purchaser of property suffering damages through government conduct may not sue for inverse condemnation where:

1. The buyer knowingly purchases property impacted by a government taking, and
2. The purchase price reflects the property’s condition in light of the government impacts.

In Ridgewater Associates, Inc. v. Dublin San Ramon Services District (May 11, 2010) __ Cal.App.4th __, it was largely undisputed that the District's waste water treatment facility caused water intrusion damage on a neighboring warehouse ...

In its April 2010 volume, the Yale Law Journal published a Note by Zachary Hudson titled Eminent Domain Due Process.  My first reaction was a bit odd.  Having spent many years as a practicing eminent domain lawyer, I rarely get the opportunity to spend time with pure, academic writing.  Just reading the Note instantly took me back many years to long hours spent in a small dark room at Boalt Hall (before all the improvements), trying to make sure all the hyper-technical "Blue Book" rules were being followed as I slaved away as Associate Editor of the California Law Review.  (It still ...

Yesterday, I chaired the International Right of Way Association Chapter 67 (Orange County) spring seminar, focused on the interrelationship between renewable energy, right-of-way acquisitions, and eminent domain.  It was a great success.  For those of you who were in attendance -- or for those of you that missed the seminar but would like a recap -- all of the speakers were generous enough to allow us to make their presentations available.

• Dave Kilpatrick's presentation, titled "Energy Independence -- the Impossible Dream?" [PDF], focused on our nation's overall ...

Next week, I'm speaking at the IRWA Chapter 67 Spring Seminar, which is focused on renewable energy issues.   So it was pretty timely when I came across an article this week involving efforts in Wyoming to curtail eminent domain power to address that state's push for increased renewable energy. 

According to a Casper Star-Tribune article by Dustin Bleizeffer, Wind boom inspires another look at state's eminent domain laws: Crossing private property, Wyoming has seen a wave of efforts to use eminent domain to acquire right of way for "collector lines," used to connect wind turbines to ...

We've previously reported on several cities contemplating the renewal of their redevelopment agencies' powers of eminent domain.  In the cities of San Pablo and Barstow, it appears that public outcry may have derailed those renewal efforts, at least for now.  Here's a brief update:

• We previously reported that the City of San Pablo was contemplating renewing its eminent domain powers for an additional 12 years.  According to a Mercury News article, "San Pablo dumps eminent domain plans," the City has dropped its redevelopment renewal plans after residents turned up with "a ...

According to a Contra Costa Times article, "Bellflower may expand redevelopment area, hopes to add $42 million to city coffers," the City of Bellflower has approved proceeding with a study to potentially expand its redevelopment area to include an additional 271 acres.  The City hopes that the proposed redevelopment -- through increased property tax revenues -- could generate over $40 million for the City over the next 45 years.

The article reports that a number of hurdles must be cleared before the expansion area is approved.  For example, the City would need to obtain approval from ...

Just a reminder about two upcoming events that you may be interested in attending:

• On May 5, IRWA Chapter 57 (Riverside/Inland Empire) will hold its monthly meeting at the Riverside Convention Center.  The speaker is Carol Brooks, and her topic is "Conflict Management:  How to Stay Cool in the Heat of Conflict."  Sounds like an interesting topic for all you right-of-way folks and relocation consultants that regularly deal with property and business owners facing eminent domain and relocation.

• On May 11, IRWA Chapter 67 (Orange County) will hold its annual ...

An interesting battle is raging in the Santa Ynez Valley.  Mattei's Tavern, a "landmark" in Los Olivos for more than 100 years, is slated for a redevelopment plan by its owner.  A local activist group, known as the Valley Alliance, wants to stop the owner's plans.  And one arrow in their quiver has been to nominate the tavern for listing as a historical landmark. 

According to an April 29 article by Kathy Cleary in the Santa Ynez Valley Journal Valley Alliance Historic Landmark Nomination:  Eminent Domain Takeover?, the purpose of the nomination is to give the Historic Landmark Advisory ...

OK, before I get into this one, you should know that I've been sitting on this story for a week, trying to decide whether it warranted a blog post.  I still haven't quite figured out what happened, and I was just about to let it go, but then my colleague Brad Kuhn pointed out earlier today that the very fact that the whole thing is so odd makes it worthy of a discussion.  So here goes. 

Last week, the City of San Clemente appealed from an earlier ruling by an Orange County Superior Court judge that the City of San Clemente was liable for a taking that resulted when the City (apparently in secret) down ...

The City of Seal Beach announced that it is moving forward with plans that certainly do not sound controversial.  The City intends to improve a bike path, expand a park, and repave a parking lot.  But an adjacent property owner thinks the City's plans are infringing on its plans to develop its property.  Bay City Partners is currently involved in two related lawsuits with the City. 

The City filed a 2009 action to acquire 21,000 square feet of the property; the eminent domain trial is scheduled for October 2010.  Earlier this month, Bay City Partners sued the City, attacking its improvement ...

As we reported in an update yesterday, San Luis Obispo County adopted resolutions of necessity to condemn portions of three parcels needed for Nipomo’s Willow Road interchange project.  According to an April 21 Santa Maria Times article by April Charlton, "Board OKs use of eminent domain," the County is still negotiating with the owners, but was forced to start the eminent domain process now, or its risks losing key project funding:

[T]he county is required to show the state that the project is ready to proceed by the end of June to obtain millions of dollars in transportation funds ...

Over the past month, we have reported on a number of potential projects involving the use of eminent domain.  For anyone following these projects, here is a quick update:

• On March 19, we reported that the City of San Pablo was contemplating renewing the City's eminent domain powers for an additional 12 years while promising compliance with Proposition 99.  According to a Mercury News article, this week the City postponed reaching a decision on the renewal until at least May 3. 
• On March 24, we reported that the County of San Luis Obispo was contemplating authorizing eminent domain ...

The City of Milpitas plans to expand its redevelopment area to encompass more than 600 additional acres.  The County of Santa Clara, however, claims that the proposed expansion area has very little "blight."  Because of the potential for diversion of tax dollars and the significant financial impact the expansion may cause, this apparently has led to a brewing dispute between the County and the City.

According to a Milpitas Post article, "County to Milpitas: revisit RDA expansion plan or face lawsuit," the County has threatened the City with a lawsuit if the City moves forward with its ...

On May 11, Chapter 67 of the IRWA (Orange County) is hosting a half-day seminar focused on the interrelationship between renewable energy, right-of-way acquisitions, and eminent domain.  If tying renewable energy to eminent domain sounds like a bit of a stretch, you apparently haven't been following all the recent news about the struggle to entitle and build renewable energy projects.  Just yesterday, the White House Blog featured a profile on federal energy policies entitled Building a New Foundation for Energy and the Environment. 

Between the project facility itself and the ...

Several years ago, the Elsinore Valley Municipal Water District filed a "friendly" eminent domain action to acquire a portion of an unimproved "paper" street from the City of Lake Elsinore.  The property was to be used to construct a water pumping station to serve a nearby development, and the City had no objection.  The water district took possession, and began construction of the pumping station.  So far, this seems like a non-story, right?

Well, to the water district's surprise, a nearby property owner appeared in the action and challenged the water district's ...

According to a San Diego Union Tribune article,"City ready to acquire land to widen Plaza Boulevard," National City has adopted resolutions of necessity in order to use eminent domain for the widening of a 1.1-mile stretch of Plaza Boulevard.  37 properties are impacted, although the City has reached agreements with a majority of the property owners.

The expansion project will widen Plaza Boulevard from four to six lanes between Highland Avenue and Euclid Avenue, including a section under the 805 freeway.  The City says widening its busiest commercial corridor will ...

Recently, the State of Utah has been making eminent domain news as it seeks to condemn property from the federal government.  Now, one California County is looking at a less drastic means of gaining some control over federal property. 

On April 6, the San Benito County Board of Supervisors voted 4-0 to reopen 25 miles of previously closed County roads.  While deciding to reopen its own roads might normally garner little attention, this decision is interesting because the roads are located within land owned by the federal Bureau of Land Management.   The roads were closed in 2008 when the BLM ...

Over the years, the approval process for development projects in California has become more burdensome, more difficult, and more time consuming.  The project proponent -- whether a private developer or a public agency -- spends months, and usually years, addressing environmental issues, processing entitlements and, for bigger projects, often facing court challenges.  But what does this have to do with eminent domain?

Well, property owners and business owners typically become aware of potential government projects very early in the planning process.  And while the ...

If you are an eminent domain attorney, a right-of-way agent, or an appraiser working in Southern California, you will have ample opportunities to expand your horizons (or at least your networking circles) in April.  Here's just a sampling of what's coming up locally:

• April 12-13:  CLE International is holding its 12th Annual Eminent Domain Conference at the Millennium Biltmore in Los Angeles.  If you're looking for two full days of hearing about eminent domain . . . you probably need help.  But if you are, this is a great program, with a number of top speakers.

• April 13:  IRWA Chapter 67 ...

A fundamental premise underlying eminent domain laws is that the owner is treated fairly under principles of just compensation.  This means that the owner receives fair market value for the property being condemned.  And, where there is an active, relevant real estate market with ample comparable sales data, this premise can be upheld through traditional appraisal methodologies.

Unfortunately, not all markets include legitimate, open market transactions from which to gather comparable sales data.  This is especially true where market conditions have deteriorated; in other ...

According to a Pasadena Star-News article, "Pasadena may use eminent domain to seize historical building," next month the City of Pasadena will consider authorizing the use of eminent domain to acquire a historical building designed by California's first prominent female architect, Julia Morgan.  The building, located at 78 N. Marengo Ave. near City Hall, was built in 1921, making it one of the earliest historical structures in Pasadena.  Pasadena is apparently ready to turn to eminent domain because the historical site has been fenced up and abandoned for more than a decade.

So ...

Last week, my colleague Rick Rayl blogged about the Ninth Circuit's issuing an order granting an en banc hearing of the Guggenheim case involving the City of Goleta's mobile home park rent control ordinance.  If anyone is interested in a more in-depth analysis of the issues of that case, how the en banc process works, how politics come into play, and how the Ninth Circuit may ultimately come out on the regulatory takings issue, Rick and I prepared a more in-depth article that addresses those issues.  The article, "9th Circuit Revisits 2009 Trailer Park Opinion," was published in the Daily ...

According to a Santa Maria Times article, "Eminent domain decision delayed," the County of San Luis Obispo is currently in the process of acquiring property for the Nipomo's Willow Road Interchange project, which will extend Willow Road from Hetrick Road to Highway 101, and will also include constructing new onramps for access to Highway 101 from the extension.  While it appears the County has successfully negotiated the property acquisitions so far, the County may utilize its eminent domain powers to condemn other necessary properties.

One impacted property -- a ...

After a flurry of post-Kelo activity, cries for eminent domain reform seem to have quieted in California in the past couple of years.  Now, public utility companies are seeking to step into the calm in an effort to roll back some of the reforms that did occur.

One of the recent changes to California eminent domain law involves the procedures for obtaining prejudgment possession.  Before Kelo, agencies could almost guarantee possession quickly.  In fact, they could obtain orders for possession ex parte, meaning they didn't even have to provide owners with notice that they were seeking ...

According to a Contra Costa Times article, "San Pablo tries to quell eminent domain fears with promise to residents," the City of San Pablo has promised residents that it will not use the power of eminent domain to acquire owner-occupied residences for purposes of private development.  The promise is a bit odd, given the fact that  Proposition 99, which Caifornia voters passed in 2008, is intended to prohibit exactly that use of eminent domain.  (We'll leave aside for the moment whether Proposition 99 really does effectively prohibit the taking of residential property for ...

We reported earlier this week about the Ninth Circuit's March 12 order to hold an en banc hearing of its decision in Guggenheim v. City of Goleta.  The case involves a regulatory takings challenge to the City's rent control ordinance involving mobile home parks. 

On March 15, the California Court of Appeal for the Fourth District (San Diego) issued its opinion in MHC Financing Limited Partnership Two v. City of Santee (March 15, 2010, Case No. D053345).  The court rejected plaintiff's regulatory takings claim involving a City of Santee rent control ordinance, concluding that the as ...

There is an interesting story in today's North County Times about a political dispute brewing between members of a sub-committe of the Vista Redevelopment Agency.  The story by Cigi Ross, titled "VISTA: Member breaks rank with Vista redevelopment panel," explains that one of Vista's project area committee members, Jerome Hymes, has distributed a letter to about 35 downtown businesses warning that the agency may seize their property by eminent domain.  The other members are chastising Hymes, claiming the letter is filled with a "total laundry list of all the urban myths of ...

According to the Alameda Corridor-East Construction Authority's ("ACE") Spring Newsletter (which was published yesterday), ACE plans to start construction of three major grade separation projects this year.  The three projects include:

• The Baldwin Avenue grade separation project in El Monte, which involves creating a roadway underpass beneath the Union Pacific Railroad tracks at the Baldwin Avenue crossing;
• The Nogales Street grade separation project in the City of Industry, which involves lowering Nogales Street 20 feet below the railroad tracks; and
• The San Gabriel ...