Eminent Domain Report

While there is a healthy debate over just how much the sea level will rise over the next 50 years, there is at least a general consensus that the sea level will rise.  What this means for those on the coast depends on the jurisdiction.  Some jurisdictions will attempt to armor the coast, protecting the structures that exist for as long as they can.  Others will pursue a policy of managed retreat, allowing the ocean to creep inward unabated.  In California, the Coastal Commission has expressed a preference for managed retreat.  However, because of the negative connotations associated with that ...

When the government requires a property owner to give up private property, the takings clause normally comes into play and the government is required to exercise its power of eminent domain. But is that always the case? According to a recent court of appeal opinion, People v. Gonzalez (Nov. 24, 2020, D077208), there are a number of circumstances in which the government can require a property owner to sell without triggering a taking of private property.

In Gonzalez, a property owner was charged with using his property without a permit or variance and maintaining an unauthorized ...

On December 3, Brad Kuhn and Maya Hamouie will co-present “Business Valuation and Damages: Assessing COVID-19’s Economic Impact” at the virtual lunch hosted by Chapter 1 of the International Right of Way Association (IRWA) for its members.

Brad and Maya will review the impacts of COVID-19 on the economy, discuss business valuation methodologies and how to take COVID-19 into consideration, then review how these scenarios are playing out in litigation. Following the presentation, they will have an interactive Q&A session with members of the audience.

Chapter 1 of IRWA seeks ...

The U.S. Supreme Court recently agreed to decide whether a California regulation allowing union organizers to access employers’ property is an unconstitutional taking under the Fifth Amendment.

In the lower court’s decision, Cedar Point Nursery v. Sheroma, a two-judge majority of the Ninth Circuit Court of Appeals rejected a claim by a group of employers that the regulation created uncompensated easements on their property. The California Agricultural Labor Relations Board regulation permits union organizers to use an employer’s property for up to three hours per day ...

When a public agency seeks to acquire property by eminent domain, the agency’s appraiser sometimes forgets to account for unique value attributes of the property. For example, the valuation may fail to take into account income the property generates from a billboard or a cell tower. According to an article on KCRA News, 'I think they are a bunch of thieves': Auburn couple decries Caltrans' eminent domain move, this situation is currently playing out in Northern California. …

As the world continues to grapple with the devastating impacts from COVID-19, local government agencies are finding ways to help local businesses survive while still complying with the complex maze of regulatory requirements. As just one example, many cities and counties are permitting restaurants and other businesses to offer outdoor dining and other services, including granting permits to operate on the public sidewalk or in streets. However, in some cases, while those outdoor operations may benefit some businesses, other businesses are complaining about the resulting ...

Each year, the Counselors of Real Estate organization polls its members and thereafter releases a summary of the “Top 10 Issues Affecting Real Estate.” You can find the article here. 

As expected, COVID-19 dominated the headlines and ranked number 1 on the list of issues. Aside from the personal, emotional, and economic toll, COVID-19 raises serious questions about the future demand for real estate, and whether it will be reduced by the “virtual office” and preference for home entertainment? There is a huge question mark regarding how long social distancing will persist, and ...

If you know someone with property that borders, is adjacent to, or abuts a natural lake, pond, bay, sea, or ocean, they may have littoral property rights. What that means is they may have the right to build a pier out to the line of navigability, a right to navigation, a right to accretion, and a right of access. I say “may” because these rights can be qualified rights, or simply nonexistent. Furthermore, determining whether such rights exist and, if you are lucky enough to have them, their extent can be a complicated endeavor. Then again, sometimes the analysis can be quite simple, such ...

When a public agency is acquiring private property for a public project, typically the key issue in dispute is how much the agency should pay -- what is “just compensation”? Determining the property’s value and any damages from the acquisition or public project is usually based on appraisals prepared for the public agency and property owner. A recent article written by Lauren Alexander, on behalf of the Owners' Counsel of America (a network of experienced eminent domain attorneys dedicated to defending the rights of private property owners across the US), highlights the top 10 ...

When a property owner commits to developing property in a certain manner, including providing a certain number of parking spaces, and the local government agency enforces the owner’s failure to comply, does the enforcement result in a taking? As expected, the answer is no -- there is no taking. This was the outcome of a recent court of appeal decision, 3558 Sagunto St. v. County of Santa Barbara (2020 Cal. App. Unpub. LEXIS 5328).

Background

In 3558 Sagunto St., a property owner owned two adjacent parcels, and submitted a development plan which designated a certain number of parking ...

We routinely get calls from owners facing impacts to their property or business as a result of construction of a public project or changes in adjacent public streets. For example, the city or county may close a road, create a cul-de-sac, turn a two-way street into a one-way street, close a driveway, relocate an off-ramp, or change a road’s elevation. When there is no physical taking of property, do these public improvements trigger a taking entitling an owner to compensation? It is a tricky, heavily fact-intensive inquiry, but generally, the analysis centers around whether the ...

In response to the COVID-19 pandemic a number of local jurisdictions throughout the country adopted ordinances freezing rents and prohibiting or limiting evictions. Not surprisingly, some landlords were not particularly pleased with these enactments, as they saw their properties occupied without the associated rental stream and still all the related carrying costs. In response, lawsuits were filed in federal and state court alleging that these enactments violated the federal and state constitution, including the takings clause. However, so far these arguments don’t ...

After adopting a resolution of necessity and initiating eminent domain proceedings to acquire private property, public agencies are usually in a rush to move forward with the proposed public project.  But every once in a while, those projects get delayed or postponed.  A recent court of appeal decision, Rutgard v. City of Los Angeles (2020) Cal.App. LEXIS 709, serves as an important reminder for public agencies that they must put the property to public use within 10 years or otherwise timely adopt a new resolution of necessity.  Absent doing so, the public agency has an obligation to offer ...

It is Christmas in July for eminent domain practitioners! We have a California Supreme Court opinion on a condemnation case, which is rare. The case, Weiss v. People ex rel. Department of Transportation (2020 Cal. LEXIS 4357), is an inverse condemnation action where the main question is this: Can you make a Code of Civil Procedure Section 1260.040 motion, also known as a Legal Issues Motion, in an inverse condemnation action? According to the Supreme Court, the answer is no, these motions are meant to address valuation issues in eminent domain actions -- not determine liability in an ...

During Nossaman's recent webinar concerning Transit & Transportation Project Success in the Wake of the Pandemic, I addressed Temporary Construction Easement (TCE) issues. For a re-cap of my presentation on this topic please click here.

Additionally, to view our entire webinar "A Path to Transit & Transportation Project Success in the Wake of the Pandemic: A Panel Discussion Among Legal Professionals," please click here to access the full on-demand recording.

We continue to monitor developments related to COVID-19 and are available to respond to questions and discuss issues ...

On June 30, 2020, Governor Newsom signed Senate Bill 350 (“SB 350”), which is intended to serve as a backstop for customers as Pacific Gas and Electric Company (“PG&E”) completes its restructuring process and begins implementing the reorganization plan recently confirmed by the United States Bankruptcy Court. The bill, named the Golden State Energy Act, gives the State authority to take certain actions if PG&E does not comply with the terms of its reorganization plan.

SB 350 establishes a new entity named Golden State Energy (“GSE”) to serve as a nonprofit public ...

As you may recall, it wasn’t too long after Governor Newsom issued his executive order mandating the closure of certain businesses in California that the first takings lawsuit was filed. (See our coverage of Gondola Adventures, Inc. v. Gavin Newsom, U.S.D.C. Case No. 2:20-cv-03789 here.) That lawsuit alleged that the response by the state and county agencies to the COVID-19 situation violated the state and federal constitutions, and resulted in a partial or complete taking in violation of the Fifth Amendment to the U.S. Constitution. Notably, the case was voluntarily dismissed ...

Our presentation on "Inverse Condemnation Exposure and Management for the Energy Industry" will be available for viewing during the 2020 American Association of Professional Landmen's (AAPL) Annual Meeting. Due to the COVID-19 pandemic, this event will be held virtually and presentations will be prerecorded and available to view on demand after the scheduled live run time on June 18th. Registration is required, but access will be available as a complimentary benefit for all AAPL members.

The 2020 event still promises to be a professional development and land conference ...

For those of you involved in the transportation sector, we invite you to join us on Wednesday, June 3^rd for a discussion on planning, procurement and financing strategies that can be implemented now to support timely project delivery in the wake of the COVID-19 pandemic.  We are planning a very interactive webinar where ample time will be set aside to answer questions received from attendees both prior to and during the event.

Topics that will be covered include:

• How to prepare now to efficiently and effectively move projects forward
• Procurement and contracting strategies that enable ...

Since the U.S. Supreme Court’s decision in Knick v. Township of Scott (2019) 139 S.Ct. 2162 eliminated the requirement for a plaintiff to exhaust state court remedies before pursuing a takings challenge in federal court, there has been a significant uptick in federal lawsuits alleging a Fifth Amendment takings claim. For example, as we recently reported, a federal lawsuit was filed earlier this month alleging that the response by California agencies to the COVID-19 situation violated the state and federal Constitutions, and resulted in a partial or complete taking in violation ...

As first reported by our good friends at inversecondemnation.com, a lawsuit has been filed in California alleging that the response by state and county agencies to the COVID-19 situation violates the state and federal Constitutions, and results in a partial or complete taking in violation of the Fifth Amendment to the U.S. Constitution. The named defendants include Governor Newsom, Attorney General Xavier Becerra, the State Public Health Officer, county Public Health Officers, and county representatives throughout Southern California. The complaint alleges ...

Thank you to all of our readers for helping to make me a JD Supra 2020 Readers' Choice Award recipient! Last year, more than 50,000 authors published their insights and commentary on JD Supra. I am proud to be recognized as one of the top thought leaders in 26 popular categories who achieved the highest visibility and engagement among readers. My fellow top real estate category authors and I were chosen from a pool of more than 2,700 writers covering real estate matters on JD Supra. 

JD Supra is a daily source of need-to-know intelligence on professional and personal matters. They publish and ...

We’ve previously reported on Senate Bill 917, which was introduced on February 3, 2020, by Senator Wiener (D-San Francisco) to establish a process for a potential government takeover of investor-owned electrical, gas and water corporations.  While the stated intention of the bill was to facilitate an eminent domain acquisition of PG&E by the state government, its wording goes much further.  Additionally, on April 3, a series of amendments were introduced that would potentially significantly change the burden of proof on a municipalization takeover effort. 

Specifically, the ...

There is an ongoing global pandemic and the world is rightly focused on news related to COVID-19.  Given the circumstances, other news is slipping below the radar.  Something you may have missed is another effort to revive redevelopment in one form or another through Senate Bill 795.

SB 795 is focused on affordable housing and tries to give local municipalities some of the tools that were available through prior redevelopment agencies.  But when one mentions ‘redevelopment’ there seems to be an immediate negative reaction. Sure, there were redevelopment projects that were sketchy ...

On April 1, Nossaman’s Eminent Domain Group hosted a webinar to discuss the impacts COVID-19 is having on the Right of Way industry.  First, I’d like to thank the people who attended, many of whom added thoughtful questions to the discussion.  It’s clear a lot of people are giving these issues a lot of thought.  Second, obviously things continue to evolve at a breathtaking pace, and even by the time this post goes from being drafted to appearing on the blog, things are likely to change. 

Note that this post is not meant to recap the things we discussed at the webinar.  If you weren’t able to join us and want to review what we covered, feel free to download the COVID-19 PowerPoint we used, or watch the entire recorded webinar.  No, the purpose of this post is to provide some insights as to what other right of way professionals are thinking about a few of these issues.  During the webinar, we asked several poll questions, and since the Nossaman team found the results interesting, I’m hoping some of you will as well ...

With the recent government mandates surrounding COVID-19, many businesses are completely shut down and are legally unable to open their doors to the public.  Are those businesses -- movie theaters, gyms, retail stores, etc. -- entitled to compensation for a regulatory taking?  Similarly, landlords are experiencing massive losses as those tenants are unable to make rental payments; are those losses compensable?  Should governments worry about liability when issuing orders requiring the closure of businesses? 

While compensation arguably should be paid from a decency and “good ...

COVID-19 has undoubtedly upended the world, including the way we do business and the future of our economy. We have received a number of questions and concerns from clients in the right of way industry on how the current pandemic affects the way we do business, and what to expect going forward. Please read on for links to helpful resources...

Since the California Supreme Court’s 2019 Oroville decision, which narrowed inverse condemnation liability for public agencies, several court decisions have followed suit.  This week, the California Court of Appeal issued a published decision in Ruiz v. County of San Diego (2020 Cal. App. LEXIS 282), which further clarified and limited what constitutes a “public improvement” for purposes of inverse liability ...

As COVID-19 spreads throughout the globe and the United States, our national, state and local governments are taking wide-reaching but necessary actions to respond to this novel coronavirus.

On March 4, 2020, Governor Gavin Newsom declared a State of Emergency and on March 12 issued Executive Order N-25-20, which, in part, allows the California Health and Human Services Agency and the Offices of Emergency Services to enter into contracts or, if agreements cannot be reached, “commandeer” property, such as hotels, medical facilities and other facilities that are needed “for ...

While inverse condemnation liability in California originates from the California Constitution, determining when it applies -- and under what circumstances -- is based on a lengthy morass of case law that has been described by one court as “seemingly inconsistent and irreconcilable.”  If you’re interested in learning more about the subject ...

Yes, but the sea might beat them to it. In 2015, the California Coastal Commission adopted the Sea Level Rise Policy Guidance. This Guidance document discusses a number of potential measures for responding to sea level rise, including "managed retreat." As explained in the Guidance document, "[r]etreat strategies are those strategies that relocate or remove existing development out of hazard areas and limit the construction of new development in vulnerable areas." Examples of retreat strategies include the acquisition and buy-out of "threatened" properties. While many ...

On February 3, 2020, Senator Scott Wiener (D-San Francisco) introduced Senate Bill 917 (“SB 917”), which would establish a new process for a potential government takeover of Pacific Gas and Electric Company (“PG&E”).

SB 917 would reestablish the California Consumer Energy and Conservation Financing Authority and authorize it to acquire, by eminent domain, the assets or ownership of certain electric or gas utilities that meet its criteria, including PG&E. Local publicly owned energy utilities may elect to join in the eminent domain action brought by the Authority and ...

Welcome to 2020! It is a new year and with every new year, comes a lot of new: new goals, new diet, new workout routines that leave every part of you sore...  In the professional setting, a new year brings a lot of “chores,” like closing out the financials for the previous year, perhaps completing year-end reviews, and on and on, and you are left asking, “We do this every year…??”  One of those chores is almost sure to be budgeting, which is universally considered to be unpleasant. Well, imagine having to kick off the year by preparing a budget for the entire state of California, the 5^th largest economy in the world. 

Luckily, that chore was left to Governor Newsom and last week, he released his 2020 budget proposal. The proposed $222 billion dollar state budget ...

Brad Kuhn was quoted extensively in the Daily Journal article “Century-Old Doctrine  Haunts Fire Litigation.” The article provides an overview of how developments in inverse condemnation that occurred in 2019 pose numerous questions for 2020 in California. 

In the article, Brad commented on inverse condemnation—a legal provision under California state law that holds if a power company’s equipment starts a fire, it is responsible for paying property damages, even if they are not found to have been negligent.

He stated that the “inverse doctrine in and of itself is ...

On January 10, 2020, the Council on Environmental Quality (CEQ) proposed amendments to National Environmental Policy Act (NEPA) implementing regulations.  The Proposed Rule would represent the first significant overhaul of CEQ’s NEPA regulations in more than 40 years.

The changes in the Proposed Rule are substantial and numerous. 

While the stated purpose of the changes is to facilitate more effective and timely environmental review of federal agency actions, the practical impact of the proposed changes is far from clear.  Below, we focus on some of the more significant ...

Eminent domain is typically used for roads, utilities, schools, and even airports, but in California, it is quite unusual (perhaps even unheard of) to use eminent domain for space travel.  

But according to an article in the Antelope Valley Press, Eminent domain possible if airport land buy fails, that is exactly what's about to happen.  According to the article, the Mojave Air and Space Port Board of Directors agreed to move ahead with eminent domain for acquiring several vacant parcels of land if negotiations fail.  The properties are apparently necessary to expand the safety zone ...

Last year, the United States Supreme Court made headlines (at least in our eminent domain world) by issuing a ruling in Knick v. Township of Scott that property owners can bypass the state courts and directly file a Fifth Amendment takings claim in federal court (you can find our write-up on Knick here).  This was a stark shift from prior law, which held that a property owner had to first finalize their pursuit of compensation through any applicable state procedures.  We are still feeling the effects from the Supreme Court's holding, but one question that has been raised is how does the ...

On November 25, 2019, the California Court of Appeal ruled that the public’s use of a road for more than half a century to access Martin’s Beach was permissive, and therefore “did not ripen into a public dedication that would give the public a permanent right to use the property.” (See our coverage of that decision here.) In so ruling, the Court handed a seemingly significant defeat to the plaintiff, a group entitled Friends of Martin’s Beach, and a significant victory to Vinod Khosla, the billionaire who purchased the 90 acres of beachfront property and the gated access road to ...

On November 27, 2019, U.S. Bankruptcy Judge Dennis Montali issued a Memorandum Decision on Inverse Condemnation (“Memorandum Decision”) in PG&E Corporation and Pacific Gas & Electric’s (together, “PG&E”) Chapter 11 Bankruptcy proceeding in the U.S. Bankruptcy Court for the Northern District of California (Case No. 19-30088).  PG&E challenged the application of the doctrine of inverse condemnation in connection with the 2015, 2017, and 2018 California wildfires.  In the Memorandum Decision, Judge Montali ruled against PG&E and instead concluded that the doctrine ...

The Fifth Amendment to the U.S. Constitution states: “nor shall private property be taken for public use, without just compensation.” The California Constitution contains a similar provision. Reading these constitutional provisions, one might reasonably assume that private property cannot be acquired for public use without just compensation. However, that assumption would be incorrect. In California, like many other states, private property may be acquired for public use without the payment of any compensation through an implied dedication. Whether there was or was ...

As we have written about in past posts, the issue of inverse condemnation remains on the forefront in the state given the continuing, severe wildfire risks and other climate change impacts.  Brad Kuhn was recently quoted in the Wall Street Journal in “PG&E Isn’t Alone in Facing Liability Risk Over California Fires,” addressing liability associated with inverse condemnation.  Willis Hon also commented on the current legislative situation in an E&E News EnergyWire article:  “Legal 'whipsaw' threatens PG&E's future.”  If you’re interested in potential legislative ...

As we all get into the holiday spirit, don’t forget to keep your skills and knowledge sharp for what is looking to shape up as a very active 2020 in the projects arena.  Join our Nossaman Partners for the following year-end conferences before settling in for your long winter’s nap! ...

In an eminent domain proceeding, tenants of property subject to condemnation have constitutional rights to just compensation. However, those rights can be assigned to the landlord through a lease agreement. A recent unpublished Court of Appeal decision confirmed that commercial tenants can assign all claims to just compensation through the terms of a lease agreement ...

In a recent published decision, the California Court of Appeal had the opportunity to address this issue when the property owners of a beachside residence in the City of Los Angeles challenged a setback condition that the California Coastal Commission imposed on their proposed home remodel.  (See Greene v. Cal. Coastal Com. (Oct. 9, 2019) Case No. B293301.)

Background

Under the Coastal Act, property owners are required to obtain a Coastal Development Permit for “development” within the coastal zone.  “Development” is defined very broadly in the Coastal Act, and includes ...