Eminent Domain Report

The regulations in 49 CFR Part 24 implementing 42 USC Ch. 61, generally known as the “Uniform Act,” are being updated for the first time since 2005. New regulations are set to take effect on June 3, 2024 (the “Rule”). We will be discussing specific aspects of the new Rule in future posts. Please contact us with any specific questions in the meantime. 

In general, the new Rule provides that caps on certain benefits, limits on waiver valuations and conflict of interest have increased. Cost of living adjustment will be allowed to increase maximum waiver and benefit levels over time ...

We recently had the pleasure of collaborating with Robert Thomas and Ajay Gajaria once again for the International Right of Way Association’s (IRWA) biannual report covering numerous eminent domain cases at local, state and federal levels from January through the end of June 2023. This report is an important resource and reference point for professionals in the right-of-way industry.

In the report, we also take a brief look at pending, adopted and failed legislation across the U.S., while also providing updates on federal funding and projects associated with the recent ...

In a recent article for Valuation magazine, “A Changing Landscape: How new state legislation may affect eminent domain valuation,” we examine how new and changed legislation can affect the role appraisers play in eminent domain actions, as well as how condemnation valuations are governed. ... 

Redevelopment agencies (RDAs) have held a rather infamous position in California history.  While originally created to address urban decay (aka “blight”), generally speaking, RDAs developed into entities that wielded the power of eminent domain to designate large areas of property “blighted,” acquire the property, and then hand it off to private developers.  The RDAs were motivated to engage in this behavior because they captured the increases in property tax revenues that resulted from the increase in property values caused by the urban renewal projects. This resulted ...

Join us in Austin, TX or virtually for Eminent Domain and Land Valuation Litigation 2023 hosted by American Law Institute Continuing Legal Education (ALI CLE) February 2-4, 2023. This conference will benefit land use, zoning or real estate lawyers, particularly those who may be involved in an eminent domain dispute; appraisers; property valuation consultants; constitutional law enthusiasts; and municipal/local government lawyers.

During “When the SWAT Team Comes (No) Knocking: Police Power Takings” at 9:00 a.m. CT on February 3rd, Steve’s panel will discuss the ...

Please join us on November 4^th as we present “Changes in the Law - Eminent Domain and Infrastructure Update” during the 2022 Right of Way Consultants Council’s (ROWCC) Fall Membership Meeting in Las Vegas, NV. During this session, we’ll discuss key U.S. cases and legislation, pending and adopted, from the last year that impact the eminent domain and right of way industries. Additionally, we will discuss ... 

In the most recent biannual report from the Real Estate Law Committee of the International Right of Way Association, we collaborated with Robert Thomas and Ajay Gajaria to examine numerous cases at local, state and federal levels from January to the end of May 2022 that are of interest for professionals in the right-of-way industry.

In the report we also take a brief look at pending, failed and adopted legislation, while also providing updates on federal funds that have been or have yet to be allocated through the recent Infrastructure Bill. The report also provides a breakdown of ...

Brad Kuhn and Jillian Friess Leivas authored the article “Eminent Domain 2021 Year in Review” for The Appraisal Journal. The article takes an in-depth look at multiple developments on the eminent domain front that occurred in 2021, including the special occasion when the U.S. Supreme Court heard two taking cases. It also examines the impact of the passage of the Infrastructure Investment and Jobs Act, which aims to provide federal funding for infrastructure projects for many years to come.

The Appraisal Journal is a publication of The Appraisal Institute, a global ...

On April 5, 2022, Brad Kuhn and Jillian Friess Leivas will present “Recent and Proposed Legislation Impacting the Eminent Domain & ROW Industry” during the Eminent Domain & Right of Way Club's virtual Lounge Event.

Brad and Jillian will discuss how recent legislation is impacting the Eminent Domain and Right of Way (ROW) industry and will review the trends observed in recent and proposed legislation.

Lounge Events are hosted exclusively on the Clubhouse app and are held the first and third weeks of every month.

The Eminent Domain & Right of Way Club is geared toward right of way ...

The International Right of Way Association (IRWA) recently released its annual report, which contains summaries of eminent domain decisions and legislation within the United States, and is an important resource and reference point for professionals in the right-of-way industry. IRWA’s Real Estate Law Committee – which is chaired by Brad Kuhn, Chair of our Eminent Domain & Valuation Group – releases the report biannually. Brad and Nossaman Eminent Domain & Valuation Group associate Jillian Friess Leivas authored the report along with Robert Thomas, the Joseph T ...

For those of you who missed our recent webinar, "Living on the Edge: Managing Sea Level Rise in California", you can find a recording of the event posted on our website.  My colleagues Ben Rubin and John Erskine provided a great overview of ways to protect existing infrastructure and private property through coastal resiliency, what the models and data are suggesting on the future of sea level rise and the status of pending sea level rise legislation in California. I covered risks and possible solutions for public agencies and property owners, with a focus on how Coastal Commission and ...

With the recent flurry of coastal law bills before the California State Legislature and the myriad headlines advising that we must retreat from the shore, sea level rise (SLR) and related climate change topics remain front and center in California. Join our Water Industry Group on May 27, 2021 from 11:00 a.m. to 12:00 p.m. PT for "Living on the Edge: Managing Sea Level Rise in California" as we sort through the pending legislation and discuss the basis for this ever-increasing concern with the encroaching ocean.

Comprised of attorneys from Nossaman’s Water, Environment & Land Use and ...

Sea level rise is a critical issue facing public agencies and property owners throughout the United States. In California alone, this phenomenon could impact thousands of residences and businesses, dozens of wastewater treatment plants and power plants and hundreds of miles of highways, roads and railways. Last year, the California Legislature introduced a number of bills that proposed to address, or anticipate, or mitigate the impacts of sea level rise in California. Almost all of those bills, however, failed to make their way to the Governor’s desk. This year, the California ...

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 ...

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 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 ...

In Governor Gavin Newsom’s first State of the State address, he called for the creation of a strike force charged with developing a comprehensive strategy to address the destabilizing effect of catastrophic wildfires on the State.  On April 12, 2019, Governor Newsom announced the results of that dedicated effort, in the form of a report titled Wildfires and Climate Change: California’s Energy Future (Strike Force Report).  Governor Newsom also summarized the findings of the Strike Force Report in a press conference that can be viewed here.

The Strike Force Report first sets out ...

With the recent widespread reports of sea-level rise triggered by global warming, the California Coastal Commission -- a state agency which regulates coastal development -- plans to release a proposal in early-2019 which provides guidelines to local jurisdictions on how to combat the potential impacts.  The stakes are enormous, as the Commission believes many homes along California's 1,100 miles of coastline will inevitably be wiped out by a rising ocean.  According to an article by Anne Mulkern in E&E News, Calif. prepares policy for coastal 'retreat', the suggested ...

Ever since the demise of redevelopment agencies in 2012, there have been a variety of legislative efforts to revive, incrementally or in whole, some form of redevelopment in California.  We have seen enhanced infrastructure financing districts, community revitalization and investment authorities, and more traditional affordable housing authorities and joint powers authorities.  But we have yet to truly see a funding source that would revive the use of redevelopment tools.  The political climate is much different now than in was in 2012:  California has a surplus budget, there is an ...

On August 31, 2018, the California Legislature passed Senate Bill (SB) 901, which addresses a number of wildfire-related items relating to public utilities.  Governor Brown signed the Bill into law on September 21, 2018.

While the bill introduces a series of new changes, it is particularly noteworthy for what it does not include from Governor Brown’s initial June 2018 proposal for wildfire liability reform.  At least for the time being, lawmakers abandoned the most controversial aspect of Governor Brown’s proposal for the bill: modifying California's strict liability ...

The Federal Energy Regulatory Commission (FERC) recently issued a Notice of Inquiry seeking input on whether to adjust its policies and procedures for reviewing and issuing authorizations for natural gas transportation facilities.  FERC is specifically considering whether it should modify (i) its methodology for determining whether there is a need for a proposed project, (ii) its consideration of the use of eminent domain and landowner interests, and (iii) its evaluation of environmental impacts.  FERC is also considering whether there are ways to improve the efficiency ...

According to an article in the Los Angeles Times, California lawmakers pitch a break from a key environmental law to help L.A. Olympic Bid, Clippers Arena, California lawmakers introduced Senate Bill 789 last week in an effort to exempt from CEQA any rail, bus, or transit project connected to the 2028 Olympics, along with expediting environmental challenges to construction of the Clippers arena in Inglewood.  If passed, SB 789 would streamline such projects as the environmental review process is typically a multi-year undertaking.  The Bill was introduced by Senator Bradford ...

We've previously reported on the recent passage of Senate Bill 1 (SB 1), The Road Repair and Accountability Act of 2017, which will raise approximately $52 billion in funding over the next 10 years specifically for transportation.  SB1 is now in full swing, and Caltrans is on a fast track to release new grant funding provided under the legislation.

On August 3, Caltrans released for public review and comment the final drafts of the SB 1 Sustainable Communities and Adaptation Planning Grant guides, which will provide more than $270 million in planning grants for local communities ...

Most Californians agree that our State's transportation system is in dire need of additional funding for additional improvements and repair.  The problem has always been where to secure the necessary funding.  In short, it has become more difficult to rely on the federal government, local and regional transportation agencies have become less reliant on the State, the gas tax has not been raised in years, and vehicles have become more fuel efficient, resulting in more miles traveled by more cars without the incremental increase in funding.  This week is a major turning point to ...

On February 9, 2017, California Assembly Member Phillip Chen (a Republican from the 55^th district) introduced Assembly Bill 408 (AB 408).  You can find a copy of the bill here.  AB 408 is styled as an act to amend Section 1250.410 of the Code of Civil Procedure relating to eminent domain.  There is very little history available on AB 408 and it appears that the next action is for it to be heard in committee on March 12, 2017.  If AB 408 is ultimately approved in its current form, it would radically change the standards by which courts decide whether or not to award litigation expenses in eminent ...

There has been a lot of news lately concerning President Trump’s desire to build a border wall. Many of the articles focus on the efficacy, costs and practical challenges of building the wall.  But the discussions are also starting to move into our world of eminent domain.  An Op Ed piece in the Washington Post  talks about Donald Trump’s Great Wall of Eminent Domain and mentions that 67 percent of the nearly 2,000 border miles constitute private and state-owned lands. The Daily Beast published an article called The Great Wall of Trump Would Be the Ultimate Eminent Domain Horror Show ...

With only a few days remaining until one of the most controversial presidential elections in history, there has been little focus on the candidates' plans as it pertains to the future of infrastructure development in America.  But both Hillary Clinton and Donald Trump have big spending plans -- they are just vastly different in their proposals on how funds will be raised and spent.  If you're interested in a detailed breakdown of Clinton's and Trump's infrastructure plans, there is an excellent article by Chuck Devore in Forbes titled "Where Clinton and Trump Stand on Transportation".

Last summer, I wrote about the Appraisal Institute’s controversial effort to promote legislation in California (known as AB 624) that would enable licensed real estate appraisers performing appraisals for non-federally-related transactions to use any nationally or internationally recognized standard of valuation. I commented at the time that it wasn’t difficult to envision a parade of horribles that might result should appraisers be permitted to identify obscure international standards for an appraisal assignment in order to drive value up or down for a litigant.

Not ...

When a third of California's registered voters turned up to vote this month, most of them got the chance to consider one of the 89 local bond and tax measures on their ballots.  School construction bonds made up over half of these measures, and nearly all of those passed, including $850 million for Long Beach Community College District and $950 million for Chabot Las-Positas Community College District.  Other Districts with big bond victories included:

• $245 million for Livermore Unified

• $265 million for Marin Community College

• $283 million for Dublin Unified

• $300 million for ...

Transparency in government is a staple of American democracy.  The Federal Freedom of Information Act and California’s Public Records Act are two examples of laws that are intended to provide transparency for government’s written information.  But many (if not all) state and local governments have also enacted sunshine laws, which generally require that government meetings be open and public.  In California, the Ralph M. Brown Act was passed in 1953.  Yet, despite having been around for over half a century, many local governments find themselves accused of running afoul of its ...

Once again, I sit at my desk wondering how all of this happened.  For more than a decade, I worked as an eminent domain attorney in utter obscurity; I'm not even sure my family knew what eminent domain was.  But then the City of New London, Connecticut tried to take Ms. Kelo's little pink house, and everything changed.  Since the Supreme Court's 2005 Kelo decision, eminent domain has become a mainstream topic, coming up in late night talk show skits, and now, taking center stage in the Republican presidential race.

At last Saturday's debate, the use of eminent domain turned into a firestorm of ...

Public agencies are routinely facing Buy America requirements in their infrastructure projects.  Some of the most difficult situations involve how to satisfy Buy America obligations with public utility relocations.  The rules continue to evolve, making compliance an ever-moving target.  To help provide some guidance, my colleague, Ann-Therese Schmid, recently provided a Buy America update on Nossaman's InfraInsight Blog.

In her blog post, Recent Buy America Developments, Ann informs us that in late 2015 the Federal Transmit Administration (FTA) and the Federal Highway ...

We've been following the status of highway and transportation funding for quite some time, previously noting that Congress kept kicking the can down the road without agreeing on a long-term solution.  Finally, that is no longer the case, as our colleagues on Nossaman's Infra Insight Blog note that the House and Senate Conference Committees have agreed on a compromise $305 billion five-year surface transportation authorization: the Fixing America’s Surface Transportation (FAST) Act, which is headed to the White House in the next few days.  Check out Billy Moore's post the Infra ...

Six weeks ago, I wrote about California Assembly Bill 624 and the Appraisal Institute’s effort to change California law that presently requires all licensed appraisers to comply with the Uniform Standards of Professional Appraisal Practice (USPAP).  While the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) would still mandate that USPAP be followed for federally-related transactions (i.e. appraisals for a financial institution that is federally insured), I observed that a licensed appraiser in California performing an appraisal for a ...

Two days ago, the Appraisal Foundation issued a memorandum to Appraisal Regulatory System Stakeholders that warned of the Appraisal Institute approaching members of Congress to sponsor legislation that would essentially dismantle the current national appraiser regulatory system.  The Appraisal Foundation states that provisions being suggested by the Appraisal Institute include the elimination of the Appraisal Subcommittee and the removal or significant dilution of the Congressional authority of the Appraisal Foundation."  It asserts that removing the existing ...

It appears the state assembly is trying to get California back on the redevelopment wagon...again. (For a brief history lesson on redevelopment, see below.)  Assembly Bill 2 (AB2), which passed the assembly earlier this month, would create new entities called Community Revitalization Investment Authorities that would have the same legal authority as redevelopment agencies, i.e., the power to issue bonds, provide low-income housing, prepare and adopt a plan for an area, and among others, acquire property using the power of eminent domain.  The legislature explains that the ...

We've been following the saga of the Keystone XL pipeline for a while now, and the battle rages on in Washington.  Yesterday, the Republican-led Senate attempted to override President Obama's veto of a bill to approve the pipeline.  For those a bit lost in all the political and legal wrangling, the recent story began with a bill in Congress designed to grant approval to the controversial pipeline project.  The bill passed the Senate on January 29 and the House in mid-February and was sent to the White House for President Obama's signature.

But just as promised, President Obama vetoed the ...

At its meeting last week, the California Transportation Commission allocated $174.8 million to 85 projects around the state.  Some of the projects receiving allocations this month include:

• $22.5 million for  construction of SR-905/SR-125 connectors in San Diego

• $20 million to realign Highway 1 in San Luis Obispo County away from the eroding shoreline

• $19.4 million to rehabilitate the Elysian Viaduct Bridge in Los Angeles

• $6.3 million for reabilitation of the Sierra Point Overhead bridge near South San Francisco

• $5.9 million to replace the aging Hilt Road Overcrossing on I-5 near ...

On November 24, 2014, the Federal Highway Administration (FHWA) published a proposed rule that would amend the regulations governing how Federal grant recipients acquire, manage, and dispose of real property.  Thus, the proposed rule, if it becomes final, has the potential to impact the daily operations of transportation agencies all across the United States.  Some of the more notable proposed revisions include:

• Broader authority for public agencies to proceed with construction contract bidding when the agency has not acquired all real property interests needed for the ...

In late September, Governor Brown signed into law AB 229 and SB 628, which are intended to finance public capital facilities or other specified projects of communitywide significance previously financed by redevelopment agencies.

AB 229 and SB 628 both seek to expand existing but underutilized Infrastructure Financing Districts (Financing Districts).

AB 229 authorizes the creation of Infrastructure and Revitalization Financing Districts (Revitalization Districts) by the legislative body of a city or county[1] to finance projects of communitywide significance pursuant ...

Earlier this week, Governor Brown vetoed AB 374, a bill to amend Code of Civil Procedure section 1263.510, the statute governing recovery of loss of business goodwill in an eminent domain case.  But it's not the veto that caught my eye so much as the veto message, which really left me scratching my head until I looked more carefully at what was going on (or at least what appeared to be going on).

Some history:  last year, the Court of Appeal issued the decision in People ex rel. Department of Transportation v. Dry Canyon Enterprises 211 Cal.App.4th 486 (2012).  The case purported to make some ...

This underwater mortgage / eminent domain issue does not appear to be going away any time soon.  Along with eminent domain attorneys Robert Thomas from Hawaii, Casey Pipes from Alabama, and Tom Olsen from New Jersey, I spoke last Friday at the ABA Annual Meeting in Chicago -- one of the cities apparently considering the plan.  The presentation itself did not focus on the underwater mortgage plan, but many of the questions at the end did.  Indeed, the issue generated more buzz in the room, by far, than any other.

This week, the news is that the Federal Housing Finance Agency ("FHFA") has ...

Over the past few days, I've had several conversations and have received a number of emails concerning the underwater mortgage series I posted recently.

Rick Friess, one of my former colleagues, commented on the series and provided two additional sources of concern.  Because I suspect many people missed his comment, I'm copying it here:

I agree with your analysis, and I see at least two other reasons this plan will not work. First, many, if not most, of the loans are likely refiances, not purchase-money loans, so the lenders will have recourse against the borrower. Thus, if the lender is ...

In two previous posts, I've discussed the proposed plan to condemn underwater mortgages and have analyzed the plan's legality.

Today, I want to talk briefly about whether the plan makes sense -- and whether it would work.  To assist those who don't want to spend much more time on this issue, I'll start with the bottom line:  I think this is a bad idea and that it will not accomplish its intended goal.  I also think the plan carries some potentially harmful baggage.

So why do I think the plan will fail?  Pretty simple, really.  The entire premise behind the plan is to acquire loans at less than their ...

Anyone who follows eminent domain issues no doubt by now has heard about the plan of some government agencies to condemn underwater mortgages -- essentially as a mechanism to refinance those loans to give borrowers loans that better reflect the current fair market value of their homes.

There has been much debate on the issue, and it has included a whole lot of rhetoric that has started to look a bit like an election campaign. I've heard extreme arguments both in favor and against the plan.

My intention here is not to advocate for or against the plan. Rather, I hope to help better -- and more ...

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 ...

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 ...

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 ...