Eminent Domain Report

The Appraisal Institute and Chapter 1 of the IRWA are holding their annual joint meeting on March 23.  It is being held at Steven's Steakhouse in Commerce.  Here are the details:

Steven's Steak House
5332 Stevens Place
Commerce, CA 90040

March 23, 2010
11:30 - Registration & Check-in
12:00 - Lunch & Presentation

The speaker will be Greg Angelo, Director of Real Property Management & Development at Los Angeles County MTA (Metro).   Mr. Angelo will talk about current Metro projects, including Expo Corridor Phase 1, Orange Line to Chatsworth, and I-405 Sepulveda Pass.  He will also talk ...

Last fall, we reported on the Ninth Circuit's decision in Guggenheim v. City of Goleta, a regulatory takings case that generated considerable interest.  The Ninth Circuit Court of Appeals held that the City of Goleta's rent control ordinance constituted a taking and ordered the City to pay just compensation to the owner of a mobile home park. 

The Court concluded that the ordinance crossed the line because it had the effect of transferring as much as 90 percent of the property's value from the owner to the mobile home park's tenants.  The holding was significant not only because the ...

I'm a California eminent domain attorney.  I work in Orange County, Los Angeles County, Riverside County, San Bernardino County, etc.  I don't work in Utah.  I'm not even licensed in Utah.  Why, then, would I bother to blog about what is going on with eminent domain in Utah?

Quite frankly, because it amuses me.  The Utah Senate has now approved a law that authorizes the state to condemn property from the federal government.  You may wonder how can a state give itself the power to condemn property from the federal government.  The answer:  it probably can't --and Utah knows it.  

According to a ...

We've previously reported on some of the major renewable energy projects currently underway, such as Southern California Edison's Tehachapi Renewable Energy Transmission Line Project and GE's plans to design the largest wind farm in the world.  After a major planning effort, it appears that another renewable energy project -- the Sunrise Powerlink project -- may be moving forward as well.  

According to a March 7 San Diego Union Tribune article by Onell Soto, the 123-mile, $1.88 billion Sunrise Powerlink project has obtained approval from the Public Utilities Commission ...

Over the weekend, someone posted a comment on an earlier piece involving the City of Vista's Efforts to Assemble an Auto Mall.  The comment referred to potential tax advantages to owners facing condemnation, and was probably more timely than the person commenting realized.  Here is the main point of the comment:

I have read that Owners forced to sell property though eminent domain have tax advantages on any gain as opposed to if they sell voluntarily.

The comment refers to Internal Revenue Code Section 1033, which provides tax deferral for "involuntary conversions" of ...

In February 2009, the city of American Canyon filed an eminent domain lawsuit in Napa County Superior Court to acquire vacant property on which the city intended to build two water storage tanks.  According to a Napa Valley Register article, "AmCan settles deal for water tank property," the city has now settled the lawsuit for $542,909.  In return, the city obtained 3.2 acres of unimproved land and an additional four acres for permanent and temporary easements.

It appears that the settlement was prompted by the court's recent ruling that the property owner was not entitled ...

Marc Scribner of the Competitive Enterprise Institute published this week an article about the economics of eminent domain for economic development (i.e., for redevelopment purposes) entitled "This Land Ain’t your Land; this Land Is my Land."  I found the piece interesting, despite the fact that it seemed the author started from the conclusion "eminent domain is bad" and worked backwards crafting an analysis to get there. 

Ultimately, however, Mr. Scribner does provide some interesting insight.  He does not simply come out and say eminent domain for economic development is ...

On March 9, 2010, Chapter 67 of the IRWA is holding its monthly lunch meeting.  The meeting is being held, as always, at the Santa Ana/OC Airport Holiday Inn.  This month's speakers are Patrick A. Hennessey and Michael H. Leifer, who are presenting "Inverse Condemnation: It's a Mad, Mad, Mad, Mad World."   MCLE credit is available for attorneys. 

You can RSVP to Hospitality Chair Joe Munsey at Jmunsey@semprautilities.com (it's $15 if you RSVP, or $20 at the door).   Here are the details:

Santa Ana/OC Airport Holiday Inn
2726 South Grand Ave.
Santa Ana, CA 92705

Meet & Greet:  11:30am ...

In December, we reported on Sierra Madre's decision to allow voters to decide whether the City should possess the power to condemn property for redevelopment purposes.  On April 13, 2010, voters will decide the issue by ratifying or rejecting City Ordinance 1304, but for now, the measure has triggered some colorful debate. 

On February 27, Susan Henderson offered a Mountain View News article "Eminent Domain Measure -- Yes or No?"  She purports to analyze the measure in the broader context of recent eminent-domain-reform efforts, including California's Proposition 99, passed in ...

In the past, we've reported on the San Francisco Redevelopment Agency's condemnation of the historic Hugo Hotel.  It now appears that city officials in Ukiah may utilize a similar playbook and reinstate the redevelopment agency's power of eminent domain in order to acquire the historic 119-year old Palace Hotel.  According to a Press Democrat article, "Ukiah seeks new life for Palace Hotel," the city may turn to eminent domain after decades of unsuccessfully nudging the hotel's Marin County owners to rehabilitate the historic vine-covered building in the heart of downtown. 

The City of Placentia has a large redevelopment area, and ambitious plans to redevelop an industrial neighborhood in south Placentia.  But the City has responded to the outrage over eminent domain and, in particular, eminent domain for redevelopment purposes.  The City apparently has no power to condemn property for private redevelopment. 

Yet, this lack of authority has not stopped some property owners in the redevelopment area from complaining that the "threat" of eminent domain has decimated their property's value.  According to a February 17 Orange County Register article by ...

We reported back in October that the Long Beach City Council approved the use of eminent domain to acquire nearly 10,000 square feet of property to widen Pacific Coast Highway.  Now in February, the City Council is once again considering the issue.  So why, nearly four months later, is the issue back before the City Council?  According to a recent Costa Costa Times article, the reason is because the project description has changed.

Back in the "pre-Kelo" era, agencies would routinely proceed with planned eminent domain despite minor changes to the project description.  However ...

Our office received notice yesterday afternoon that due to the current fiscal crisis, the Los Angeles County Superior Court is closing Department 59, effective February 22.  Everyone who practices eminent domain in Los Angeles knows about Department 59, the Department designated for eminent domain cases in Los Angeles County. 

Commissioner Mitchell has been handling eminent domain cases in Department 59 for many years, and his knowledge of this unique area of law has made pretrial procedures in Los Angeles run smoother than anywhere else in Southern California.   Even for those ...

I will be speaking February 11 at the Sacramento IRWA Chapter's lunch meeting (Chapter 27).  My presentation will be about avoiding pitfalls under the new eminent domain prejudgment possession rules.   This topic has received considerable attention over the past couple of years, and will undoubtedly be the focus of more attention over the next few years as appellate decisions involving the new rules start to appear.  

The meeting details are as follows:

La Provence
110 Diamond Creek Place
Roseville, CA 95747
(916) 789-2002

Board Meeting: 10:30 a.m.
Registration/ Meet & ...

Next week, Chapter 67 of the IRWA (Orange County) is holding its annual Past Presidents' lunch.   The lunch will feature speaker Randall S. Stamen, an International Society of Arboriculture Certified Arborist -- and an attorney.  In case the really long title is slowing you down, I think that means he is a tree expert and, in particular for the IRWA's purposes, that he has expertise in dealing with relocation and valuation of trees impacted by eminent domain actions.  

Though it seems at first glance like a fairly odd topic, tree issues do arise with some regularity in condemnation cases ...

We have previously reported on Tulare County's efforts to acquire right of way for its Road 108 widening and its Road 80 widening.  Now, the County is considering condemning four additional parcels for the Road 108 project. 

In a February 1 article in the Visalia Times Delta, Eminent domain on county board's agenda, Valerie Gibbons reports that the County will decide tomorrow whether to file four more eminent domain actions, which would bring the recent total to 25.  Ms. Gibbons reports that the County's apparent rush to proceed has "had residents up in arms in past meetings."

But the County ...

I mentioned in an article last week that many redevelopment agencies are facing budget issues; the city of Imperial Beach is facing a similar, but slightly different, problem:  after investing over $8 million in bond money for redevelopment of the Miracle Shopping Center, the economic climate has made it impossible for the city to find an interested developer. 

Nevertheless, the city decided to raise more funds, and purchase the shopping center anyway, hoping the city's ownership would make the site more attractive to developers.  With city ownership now in ...

Yesterday, Professor Gideon Kanner, a well-known eminent domain scholar, wrote a critique of my post about Avatar on his "Gideon's Trumpet" blog.  It is an interesting response, in that it spans two full pages of printed text, and his fundamental point seems to be that he agrees with my premise that Avatar is not a film about eminent domain.  

How, then, does he spend two pages responding to my January 26 post, "Is Avatar Really a Political Commentary on Eminent Domain Abuse?"  Well, he begins by "trumpeting" the fact that he writes from an "unabashedly property-owner oriented" ...

On February 3, Chapter 57 of the International Right of Way Association will hold its next lunch meeting.  The speaker will be Barry McDaniel, the CEO at Overland, Pacific and Cutler.  Barry is a well-recognized -- and very successful -- relocation consultant.  He will be speaking about "Move Planning." 

The meeting details are as follows:

Riverside Convention Center
3443 Orange Street
Riverside, California

The meeting starts at 11:30 and should be over by around 1:00.  The cost is $16.00 if you RSVP in advance, and $20.00 at the door.  You can RSVP to Chapter 57 Communications ...

For years, Cathedral City has been acquiring property by eminent domain as part of its 23-acre Eastside Downtown Area redevelopment plan, which seeks to redevelop downtown Cathedral City into a 39-unit commercial center.  Our firm has also been involved in the project for years, having assisted several property owners impacted by the redevelopment agency's plans. 

According to a January 26 Desert Sun article, "Cathedral City council votes to pay $535,000 in eminent domain land deal," Cathedral City recently approved a $535,000 settlement with one of the final remaining ...

A few weeks ago, my wife and I went to see Avatar.  With two young kids, we rarely see movies in the theaters, and we picked this one based on its advertised special effects, not any belief that it was the "best" movie among our choices.  

As I watched, I never really thought of it as an expression of outrage over eminent domain abuse.  Looking around the Internet, however, the movie seems to have been picked up by eminent domain reformists as a big budget example of eminent domain gone bad.  But is it, really?  Let's look at some facts ...

In November, we reported that the Barstow City Council would be deciding whether to reinstate the redevelopment agency's power of eminent domain.  According to a January 20 Desert Dispatch article, "Eminent domain issue sparks fear among residents," the City Council has decided to table the issue until May. 

According to the article, the redevelopment agency sees its eminent domain power as a necessary tool to remove blight in the area northwest of Interstate 15 near the outlet malls.  But like most redevelopment efforts, the issue is drawing much public debate.

At the City ...

The public outcry over eminent domain continues.  Claims of "eminent domain abuse" fill today's popular media; a January 21 article by Steve Cook, Eminent Domain is Alive and Well, claims 2 in 3 Americans oppose eminent domain. 

What so often gets lost in the shuffle is that most of the outrage focuses on a narrow aspect of eminent domain:  redevelopment efforts that involve condemning private property and transferring it to another private owner.   This is what sparked debate in the Kelo case, and it is making major headlines in New York, where the "Atlantic Yards" drama involves ...

2009 has come and gone.  With it, we moved one more year past 2005's Kelo decision -- and a lot closer to what those of us who have worked in eminent domain for many years consider "normal."  Massive eminent domain reform efforts seem -- for now -- to be a thing of the past.

The California Legislature passed no substantive changes to California's eminent domain law, and the closest we came to a marquee eminent domain case last year was probably the Marina Towers decision, which was much discussed, but does not represent any sweeping changes to California law.

Still, there were a few notable ...

On January 21, the Southern California Chapter of the Appraisal Institute is holding its 17th Annual Los Angeles/Orange County Market Trends Seminar.  The panel looks quite good, and the event is being chaired by Orell Anderson, MAI, Steve Valdez, Michael Kearns & Tyler Baird.  They report having only a few seats left, so act quickly if you want to attend. 

The seminar runs from 8:00 a.m. to 5:00 p.m., and is being held at ...

Last week, I reported on Kimco of Evansville, Inc. v. State of Indiana, an access-impairment case pending for consideration by the U.S. Supreme Court.   

In an order earlier today, the Court denied the Petition for Writ of Certiorari.  This is not entirely surprising; in the same order in which the Court denied the Petition in the Kimco case, the Court also denied similar petitions in 175 other cases.  The Supreme Court grants Petitions in less than five percent of the cases presented to it.  

The Court still has pending before it another eminent domain case, Stop the Beach ...

There was both good and bad news this month for San Francisco’s planned Central Subway Project.  Earlier in the month, the Federal Transit Administration issued its approval which permits San Francisco to begin the final design stage of its $1.6 billion subway which will ultimately link AT&T Park with Chinatown. 

To secure the necessary right-of-way, San Francisco's Department of Public Works recently notified 12 retailers along Stockton Street that their minor encroachment permits, authorizing them to occupy City-owned sub-sidewalk space, will be revoked. They ...

According to an Orange County Register article, "O.C. may force sale of property for tunnel," Orange County officials are considering the use of eminent domain to acquire 20 parking spaces from a Huntington Beach apartment complex.  The property is necessary for a storm drain project which tunnels under the I-405 freeway.  

The County's storm drain project is in response to a 1995 flood which required the evacuation of the apartment complex's ground-floor units.  The property owner has been offered $96,500 for the 7,200 square feet that make up the 22 parking spaces.  

The County's ...

According to a January 10 post on the Fox Rothschild Eminent Domain & Real Estate Litigation Blog, the U.S. Supreme Court is scheduled to hold a conference this week on whether to grant a Petition for Writ of Certiorari on an access-impairment claim arising from a condemnation case in Indiana, Kimco of Evansville, Inc. v. State of Indiana. 

Post author David Snyder explains that the need for Supreme Court review arises from a "general rule" in most states that damages arising from access impairments are not compensable as long as the owner is left with reasonable access, and the belief ...

The Alameda Corridor-East Construction Authority ("ACE") is working on a $75 million project to improve rail service in the San Gabriel Valley.  The project involves constructing a rail underpass on Baldwin Avenue in El Monte, and it is part of a larger, $1.1 billion project that includes 20 grade separations.   

ACE has acquired nearly all of the right of way for the Baldwin Avenue underpass, but one owner, Fred Jast, has not moved.  According to a recent San Gabriel Valley Tribune article by Rebecca Kimitch, "El Monte man fights eminent domain claim," Mr. Jast has been fighting with ACE for several years ...

San Bernardino currently has over a dozen overpass or underpass projects planned throughout the county.  Last month, officials had planned to move forward with condemnation proceedings for one such project, the $20 million Hunts Lane overpass located at the Colton-San Bernardino city line. 

But according to a Riverside Press-Enterprise article, "Hunts Lane overpass causes some concern," nearby property owners voiced concern over the railroad grade separation project's impacts to their businesses, such as blocking access and destroying visibility.  As a ...

The City of Rosemead has a vision of its future that transforms the city into "a small town in the heart of a metropolis."  That, according to San Gabriel Valley Tribune reporter Rebecca Kimitch, is the goal of the city's new strategic plan.  Ms. Kimitch's article, "Rosemead defines itself as small town in the big city," explains:

The to-do list is ambitious: landscape medians and plant trees along sidewalks; demolish dilapidated vacant buildings; develop new neighborhood parks; remove graffiti; expand community classes and develop a community computer lab; create a civic center at ...

Earlier this year, Nossaman sent out an E-Alert providing a status update on the use of federal stimulus dollars for California infrastructure projects.  Here on the blog, we've also recently reported on water-related property rights issues grabbing news headlines.  A recent Mojave Water Agency project -- backed by federal stimulus dollars -- ties the two topics together.   

According to a recent Victorville Daily Press article, "MWA uses eminent domain on land: Property is needed for R-Cubed project," the Mojave Water Agency is using eminent domain to acquire land ...

This week the Orange County Register reported in an article titled "Transportation agency to spend millions saving habitat" that the Orange County Transportation Commission is "beginning quietly" with what could be "one of the largest habitat preservation efforts in county history" by which the OCTA may acquire millions of dollars of land to protect native landscape.

The article states:

The preservation push [is] meant as a hedge against possible habitat damage from a 30-year, $4.8 billion freeway improvement project the agency is planning.

According to the article, the ...

I previously reported on a political discussion taking place in a San Diego community, San Ysidro, with respect to whether the city should reinstitute its expired power of eminent domain.  While San Ysidro contemplates this issue, another San Diego community -- this time Chula Vista -- is in the process of drafting its five-year redevelopment plan, which could include expansion.

Like San Ysidro, Chula Vista recognizes the public concern over the city's wielding its condemnation power, especially for redevelopment purposes.  Chula Vista, therefore, has sought public ...

Earlier this month, I reported on a Florida case now pending before the U.S. Supreme Court, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection.  Earlier this week, I reported on some other property-rights issues currently in the news. 

Yesterday, one of my partners, Howard Coleman, took things a step further, attempting to tie recent property-rights issues into a big picture view of what it all may mean for California property owners.   

His piece, Sea Level Rise and Coastal Boundary Lines – Consequences of Climate Change, examines the Florida case ...

One of the big eminent domain stories of the last few weeks involved the oral argument at the U.S. Supreme Court in the Florida beach case.  That case involves whether a government program to add sand to parts of the Florida coastline, creating new public beaches in front of private property that had been beach front constitutes a taking.  For more information about that case, see my December 15 article, "Erosion Control, or Coney Island South?" published in the Los Angeles Daily Journal. 

Now, two other water-related takings issues are making news.  The first, as reported December 14 by ...

We've previously reported on the increase in renewable energy projects in California, such as Southern California Edison's ("SCE") Tehachapi Renewable Transmission Project.  When it comes to wind farms, General Electric now takes the cake:  it has brokered a $1.4 billion contract to supply wind turbines and services for a wind farm that would be larger than any wind farm currently in operation in the world.

According to a December 10 Bloomberg article GE Wins $1.4 Billion Order for Oregon Wind Farm, the 338-turbine wind farm will stretch across 30 square miles in ...

Sierra Madre will allow its citizens to decide whether the city can use the power of eminent domain for private purposes.  According to a Pasadena Star-News article, "Sierra Madre resident[s] will vote on eminent domain," the city council agreed to put a proposed measure on the April 2010 ballot which would prevent the city from (1) condemning property and turning it over to a private developer, and (2) funding or cooperating with any other city agency using eminent domain (such as the Redevelopment Agency).

According to the article, City councilman John Buchanan is ...

Everyone knows the sad tale of America's automotive industry:  companies operating only through government subsidies and dealerships shutting their doors across the country.  So when the City of Vista came up with a plan to "create a second downtown car dealership and boost sales tax revenue," one would think the public would embrace it. 

But like many bold plans, this one has a wrinkle.  While most of the property needed to facilitate the plan is available for purchase, including the existing North County Ford site, one additional parcel is needed.  

According to North County Times ...

Today I attended the latest IRWA Tri-Chapter Installation Lunch for Chapters 1 (Los Angeles), 57 (Inland Empire), and 67 (Orange County).  This year, my home chapter, Chapter 67, hosted the event, which was held at the Nixon Presidential Library and Museum.  Despite the poor economy, 165 of the finest right-of-way professionals in Southern California showed up, and it was -- as always -- more a holiday celebration lunch than a formal meeting. 

International President Sandy Grigg flew down from Canada to install new officers for Chapters 1 and 57 (Chapter 67 will install new officers in ...

Perhaps the most talked-about California eminent domain case in 2009 has been the City of Stockton v. Marina Towers decision, in which the Court struck down the City's right to take property where the resolution of necessity contained no real public purpose (not surprising, since the City did not know at the time it filed the action what it would do with the property).   The case's tag-line usually played out like this:  the "project" was the condemnation itself, which does not qualify as a public purpose.   

This holding was itself somewhat interesting, as California law ...

A year or so ago, I attended a three-day symposium on regulatory takings that was held at Stanford University. At the end of the symposium, the final panel of speakers was asked to predict what the United States Supreme Court might be doing in the area of takings over the next couple of years. The answer of at least one panelist was essentially nothing. In his view (at least as I understood it), the Supreme Court had been grappling with various takings issues for years without coming up with particularly workable formulas and was done trying.

Well, based on an article in the Los Angeles Times ...

The City of Claremont voted 4-1 to extend its redevelopment agency's eminent domain authority for another 12 years.  In a November 29 Inland Valley Daily Bulletin article, Claremont renews its eminent domain power, reporter Wes Woods, II writes that the the City's redevelopment agency amended its redevelopment plan to prevent its eminent domain authority from lapsing in December. 

The use of eminent domain is often controversial, but especially so when it is for redevelopment purposes.  And, when redevelopment requires condemnation of residential property, the public tends to ...

So it's the Wednesday before Thanksgiving, and I thought I should spend some time thinking about what I'm thankful for (apart from Cal's victory at Stanford last Saturday).  Here's a list of three things an eminent domain attorney can be thankful for:

1.   I Live in a Country With Eminent Domain.  I know, who spends time being thankful for eminent domain?  But think about it.  In many places, the government just takes property, paying nothing.  Even in this country, before it was this country, when the Pilgrims took land from existing Native American tribes just after inviting them over for a ...

It seems most commentators on eminent domain generally, and on the use of eminent domain for redevelopment purposes in particular, adopt an extreme stance.  The loudest voices, especially in the "post-Kelo" world, tend to be property-rights advocates who denounce virtually any use of eminent domain, especially for redevelopment purposes. 

A good example of this appears in a recent San Diego News Network article by Brian Peterson, president of the Grantville Action Group:  "What we Learned at a Redevelopment Conference:  Don't do E-mail."  The article summarizes two ...

The Cato Institute's blog has an interesting post concerning the government's ability to induce local government agencies to enact tougher zoning standards that decrease the value of property which the government may want to acquire in the future. 

The post, titled "A Special Kind of Eminent Domain Abuse," deals specifically with the federal government's actions with respect to property it has contemplated acquiring for 30 years in order to expand the Everglades National Park.  The post  by Ilya Shapiro reports that in the case of 480.00 acres of Land v. United ...

The City of Visalia's road widening project at the Mooney Boulevard and Walnut Avenue intersection depends on the acquisition of a strip of private property necessary to relocate power poles.  According to the Visalia Times-Delta article, "Power poles, land acquisition trip up Visalia's plans for transforming Mooney/Walnut intersection," the necessary strip of land belongs to the owners of the Peachtree Shopping Center.  Those owners do not want the power poles on their property, and Visalia's City Council has therefore approved the use of eminent domain.

According to the owners ...

Yesterday, I spoke at the Appraisal Institute's 42nd Annual Litigation Seminar.  As usual, it was a great event, well attended by many of the top eminent domain appraisers in Southern California.  I spoke about recent developments in a presentation entitled "Eminent Domain: Where Are We, and Where Have We Been?"  [PDF] 

While I am confident that anyone in attendance would tell you I was brilliant, I want to focus today on some issues that arose in Ted Whitmer's presentation entitled Legal Instructions, Litigation & Appraisal Institute Standards.  Ted's firm, Appraiser Defense

With recreational travelers bound for Las Vegas and Laughlin combining with commuter traffic and freight movement, the junction of Interstate 15 and Interstate 215, known as the Devore interchange, likely qualifies as the the worst bottleneck on the I-15 in San Bernardino County.

And as Dug Begley reports today in a Press-Enterprise article titled Devore Interchange Discussed Today, the San Bernardino Association of Governments in planning to do something about it:

The interchange, a well-known bottleneck near where traffic enters and exits the Cajon Pass to the High Desert, is ...