Eminent Domain Report

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 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 ...

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 ...