Eminent Domain Report

In an unpublished opinion filed this week, the California Court of Appeal confirmed two fundamental evidentiary rules related to eminent domain matters:

1. A witness intending to testify to an opinion of value must exchange a statement of valuation data; and
2. A witness will be precluded from testifying to a comparable sale if it is determined by the court that the comparable is not comparable and would confuse the jury.

Before we delve into the case, here’s a basic reminder of California law as it pertains to these two issues:

With respect to the court’s first finding, California Code of ...

Most of us are at least vaguely familiar with the tax on gains from the sale of property.  Many of us know that when property is sold voluntarily and the funds re-invested, the gain may be deferred under Internal Revenue Code section 1031.  What is sometimes overlooked is the taxability of gains when property is sold involuntarily, i.e., condemned.  As we posted several years ago, Internal Revenue Code section 1033 contemplates just such a situation, and provides some advantages over a section 1031 exchange: An owner has more time to re-invest and may actually hold the proceeds pending that ...

California's heat-wave continues, and so does the drought.  With water becoming more and more scarce, the topic of water supply and how to value water rights is becoming a key issue in California.  If you're interested in these issues, International Right of Way Association Chapter 57 is hosting is fall seminar this Friday, October 14, titled "Water Supply & Impacts."  There are some great speakers lined up to discuss California's water supply, how to value flowage and drainage easements, and how water can impact a property's highest and best use.

And if you're interested in a ...

It's not every day you're involved in a successful eminent domain case before the California Court of Appeal.  It's even more unusual when the case deals with a number of interesting legal issues, such as the enforceability of a waiver of just compensation, the compensability of a license, the breadth of the "project influence rule" for purposes of a property's valuation, and the substantial impairment of access test.  I was fortunate enough to have dealt with all these interesting issues in a single case, Los Angeles County Metropolitan Transportation Authority v. KBG I Associates ...

We've been closely watching Assembly Bill 2 work its way through the legislature for most of 2015, and last week, it was finally signed by the Governor.  What does it mean?  You can find a detailed analysis by my partner, Bernadette Duran-Brown, in our recent E-Alert, but generally, it means redevelopment is back in California.

AB2 allows local governments to create Community Revitalization and Investment Authorities (CRIAs), which will have the power to issue bonds, provide low-income housing, prepare and adopt a revitalization plan for an area, and acquire property ...

Back in May, we provided an update on the status of AB2, the bill which would create Community Revitalization Investment Authorities, (see here).  Things were relatively quiet over the summer but this month has the bill seeing a lot of action: It was passed by the state senate on September 9, passed by the assembly on September 12 and has been sent for final review before hitting the governor's desk for signature.  As we discussed previously, Governor Brown vetoed the last iteration of this bill because the bill vested the program in redevelopment law, and the new bill does not.  While he ...

Public agencies in California are once again getting busy with new projects.  It seems at every event I attend all the right-of-way professionals, appraisers and eminent domain attorneys tell me they're fully occupied.  Recent news articles support this conclusion.

For example, according to an article in the Orange County Register, Santa Ana council OKs EIR moving forward on Warner Avenue widening using eminent domain, the City of Santa Ana has adopted a final environmental impact report for the Warner Avenue Improvement Project, which will reconfigure the road from Main ...

With the improving real estate economy, there have been an influx of new large development projects throughout California.  With these new proposed developments, it is common for local government agencies to require public improvements -- such as streets or utilities -- to support the influx of traffic and people to a previously undeveloped area.  Those public improvements commonly take place off the developer's property, so what happens if surrounding property owners do not want to sell their land to support such improvements for a private development?  Can eminent domain be ...

Generally when the United States takes property pursuant to its eminent domain authority, just compensation is based on the market value of the property on the date of the taking.  However, when acquiring a street, road or public highway, the public entity whose property is taken is entitled to compensation only to the extent that, as a result of such taking, it is compelled to construct a substitute highway.  (Washington v. United States, 214 F.2d 33, 39 (9th Cir. 1954), emphasis in original.)  Where it is unnecessary to replace or provide a substitute, the public entity is only entitled to ...

Last week, Jeremy Jacobs posted an interesting article about the U.S. Supreme Court’s recent decision in Horne v. Dep’t of Agriculture, No. 14-275 (U.S. Jun. 22, 2015), and its potential application to Endangered Species Act (ESA) jurisprudence.  (See Raisin ruling seen as lifeline for endangered species, published by Greenwire on August 19, 2015).  In Horne, the U.S. Supreme Court held, in an 8-1 decision, that the forced appropriation of a portion of a farmer’s raisin crop qualified as a clear physical taking requiring compensation under the Fifth Amendment to ...