Eminent Domain Report

Right of Way Certification is a key project milestone; not only does it mean a project is ready for advertising but obtaining certification by a certain date is often a prerequisite for funding.  Tying certification to dollars means it’s crucial that agencies acquire property and/or obtain orders for possession in a timely manner.  As we’ve discussed here before, this can mean filing an eminent domain action while still negotiating with property owners, something many agency boards are reluctant to do.

The latest example of the perils of prejudgment possession comes out of Butte ...

One of the issues often disputed between public agencies and property owners in eminent domain actions is the assessment of severance damages, and in particular, whether damages should be based upon (i) the terms of the resolution of necessity, or (ii) construction of the project in the manner proposed.  This dispute grows from a seeming conflict between a court of appeal decision, County of San Diego v. Bressi (1986) 184 Cal.App.3d 112, and Code of Civil Procedure section 1263.420.  Specifically:

• Bressi held that in a condemnation action, (1) the jury must determine damages caused by ...

In California eminent domain actions, absent special circumstances (such as an abandonment, successful right to take challenge, or inverse condemnation finding), a property or business owner is typically only entitled to recover litigation expenses (attorneys' fees and expert costs) in one circumstance:  where the public agency's final offer of compensation is unreasonable and the property owner's final demand is reasonable.  In making this determination, the judge is only to consider the final offer and demand that were made at least 20 days before trial.  (See Code Civ. Proc ...

I wanted to provide a quick update on two recent cases from the California Court of Appeal.

The first, Golden State Water Company v. Casitas Municipal Water District (April 14, 2015), involves what appears to be an issue of first impression in California:  can Mello-Roos financing be used to fund an eminent domain action to acquire a utility company's assets?  In Golden State Water Company, the Casitas Municipal Water District wanted to acquire the assets of the Golden State Water Company for the purpose of taking over the provision of water to many residents in Ojai, California ...

It is increasingly important for buildings to be energy efficient.  So-called green buildings can not only lead to more efficient energy use, but can also result in significant cost savings over time.  Indeed, green buildings may be more valuable than comparable buildings that are not as energy efficient.  This is an important factor to consider in eminent domain proceedings.  This point was driven home in a recent presentation made by Michael Frost, LEED AP, First Vice President at CBRE in its Palo Alto, California office.  He made the presentation to a diverse group of right of way ...

The City of Temecula is moving forward with the French Valley Parkway.  The project involves construction of a new arterial, as well as improvements to the I-15 Winchester Road interchange.  Phase I of the project included constructing southbound off-ramps for the future Parkway.  These ramps are complete, but as a post on The Transit Coalition Inland Empire blog asked a year ago - "What the heck is going on with French Valley Parkway?"   The answer is the same now as it was then -- Caltrans and the City are working to establish the scope and phasing of the remaining improvements.  So when will it ...

It depends.  A recent decision out of the Federal Circuit tackled this very issue, and the court's decision strongly suggests that a taking could arise under the right circumstances.  (Filler v. U.S. (Fed. Cir. Mar. 10, 2015) Case No. 2014-5117.)  As you probably already guessed by my use of the phrase "strongly suggests," both the lower court and the Federal Circuit in this case found that the plaintiff's challenge did not present the "right circumstances."

After sustaining a work-related injury, an employee of the U.S. National Marine Fisheries Service visited the ...

On Tuesday, the Lake Elsinore City Council adopted a Resolution of Necessity to acquire a 2+ acre property in order to expand Serenity Park.  As Michael Williams describes in his article "City hopes to take over boat launch,"  the expansion is part of the City's plan to develop a skateboarding arena .  The City's staff report says the City has been negotiating with the property owners for about a year, but that they have not agreed on a price for the property.  The staff recommended the city move forward with an eminent domain lawsuit.

It isn't clear why the owners rejected the City's offers ...

As this article by OCTA explains, the Southern California region is growing both in terms of population and in the volume of goods moving through the region via both road and rail.  I am sure many of us are familiar with the impacts this has on our daily lives -- like being stuck for what feels like hours at a train crossing.  But several local agencies are doing what they can to ease our pain.  In Orange County, OCTA is in the midst of its OC Bridges program building grade separations.  And in Los Angeles, the Alameda Corridor-East Construction Authority (ACE) has completed several new ...

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 ...