Eminent Domain Report

In order for a property owner to successfully pursue a regulatory takings claim for inverse condemnation, the owner is typically required to pursue multiple different development options, and face multiple permit denials, before a claim will be ripe. However, a recent California Court of Appeal opinion, Felkay v. City of Santa Barbara, 2021 Cal.App. LEXIS 225, held that “multiple applications are not required where the permit denial makes clear that no development of the property would be allowed under any circumstance.”

Background

In this case, a property owner applied to ...

Providing listeners a convenient and concise medium to access timely reports on important land use topics, Nossaman’s recent podcast offerings make a great addition to your professional playlist.

First, check out Nossaman’s own Digging Into Land Use Law podcast, which covers the development of all things in, on or above the ground. Recently, I recorded the episode “Valuation and Damages: Assessing COVID-19’s Economic Impact.” Changes in how businesses operate, restrictions on property use and reduced revenues brought on by mandated closures due to COVID-19 have had ...

Sometimes there is a case that seems to perfectly address the legal issue you are trying to make and the facts line up, but the case is unpublished. According to the California Rules of Court, rule 8.1115, unpublished cases generally cannot be relied upon. But, if you are quick enough, there is a possible way to request such cases become published.

This was a question we recently received during our 2020 Year-in-Review Eminent Domain webinar. If you weren’t able to join us during the webinar, you can still watch the recording here. Also, keep an eye out for other Nossaman webinars, as ...

While nobody could have anticipated the challenges of 2020, the right-of-way industry worked through difficult issues to move critical infrastructure projects forward. On February 11, 2021, our Eminent Domain & Valuation Group presented “Eminent Domain in 2020: A Year in Review,” during which we discussed decisions in key cases and trends from California and around the country that will continue to impact the right-of-way industry going forward. If you were not able to attend the live session, we invite you to watch the on-demand presentation at your convenience. 

We have been following for some time now the COVID-19 takings lawsuits that have been popping up since California’s first closure orders. As we previously reported, these cases did not seem to be making much traction in the courts. However, one ongoing case in the United States District Court for the Southern District of California may be trending in the opposite direction.

In the case of Bols v. Newsom (2021 U.S. Dist. LEXIS 15237), Plaintiffs’ businesses (commercial landlord, hair and nail salons) were deemed non-essential per the public health orders and experienced the ...

The Refugio Oil Spill in 2015 resulted in not only impacts to a highly diverse stretch of California’s coast, but also years of associated litigation. In a recent California Court of Appeal opinion, State Lands Commission v. Plains Pipeline, L.P., No. B295632 (Nov. 19, 2020), the court held that the judicial doctrine establishing that public utilities do not owe the public a duty to provide their services continuously and without interruption did not apply to Plains Pipeline, L.P. and its affiliates (collectively, “Plains Pipeline”) on the ground that despite being a public ...

Typically, when a public agency acquires property by eminent domain, it names all potentially interested parties in the condemnation action. This includes the property owner, any easement holders, lien holders and usually businesses as well. If the agency does not name all interested parties, anyone with an interest may still appear in the action. Or if the party does not appear, it could potentially file a subsequent inverse condemnation action for the taking of its property interest (which could expose the agency to attorneys’ fees -- hence the importance of naming all ...

Sometimes a public agency ends up abandoning an eminent domain proceeding, even after the property owner or business has moved from the property. Under Code of Civil Procedure, section 1268.620, if a defendant “moves from property” and the agency subsequently dismisses the suit, the owner/business may be able to recover payment of all damages proximately caused by the proceeding and its dismissal.  One would think determining whether an owner/occupant has “moved” from the property would not be an issue for dispute.  But a recent unpublished California Court of Appeal ...

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 ...