Eminent Domain Report

As California continues to expand and improve its infrastructure, public agencies are more frequently running into contaminated property.  A frequent question for eminent domain attorneys is:  "how does contamination impact 'fair market value' in a condemnation action?"  My general advice is that the contamination should be treated just as it would in an open market transaction.  But how is contamination handled in a typical transaction -- and how does it impact value?  Aside from potential clean-up costs, are there lending issues, and is there a general stigma with contaminated ...

Public projects take years of planning and environmental review usually involving outreach to neighboring property owners and other stakeholders. During this process, potential right of way impacts are identified and property owners (and their potential buyers or tenants) become aware of the planned project. As we have described in the past, this can result in a cloud of condemnation over the property, affecting the value of that property. Property owners often feel they should be compensated for this uncertainty. But it is difficult for owners to succeed on these claims. (Check ...

California’s infrastructure is aging. There have been numerous reports of water line breaks and gas line leaks, and public agencies have been moving quickly to upgrade their utilities to minimize these risks and satisfy increasing demands. When incidents do occur, when do agencies face potential liability in inverse condemnation? A recent California Court of Appeal decision, Kelly v. Contra Costa Water District (Feb. 10, 2015) 2015 Cal.App.Unpub.LEXIS 924, while unpublished, provides some guidance.

In Kelly, the owners of a self-storage facility in Pittsburg, California ...

The burning question, is why?  While this is not the first time the U.S. Supreme Court has ever granted a petition for review in the same case, it is certainly not common.  And, it is downright uncommon for the Supreme Court to grant a second petition for review when the central issue in the case is a takings issue.  So what is the Supreme Court planning to do?  Are they going to revisit their 2013 decision and find that they made a mistake, and that the Hornes are actually required to first bring their takings claim in the Court of Federal Claims?  Or, is the Supreme Court ...

When a public agency acquires a portion of property, under California law the property owner is entitled to "severance damages" -- or damages to the remainder portion of the property that was not acquired.  Usually, determining what constitutes the "remainder property" is relatively straight-forward.  But not always.  And, the determination could have a significant impact on the amount of compensation the public agency must pay, as a property owner is not entitled to compensation for damages to separate and independent parcels that are not touched by the condemnation.

So how is the ...

In the aftermath of last year’s Rails-to-Trails Decision, Marvin M. Brandt Revocable Trust v. United States, 572 U.S. ___ (2014), the valuation of rail corridors may become increasingly necessary.  Typically there are three approaches to valuing rail corridors:  1) Across-the-Fence approach, 2) Comparable Sales approach and 3) Income approach.

1. The Across-the-Fence approach (ATF Method) -- the most popular approach for valuing rail corridors -- appraises land utilized as a right-of-way by assuming that its market value per square foot is equal to the value of adjacent or ...

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 March 5, Nossaman's eminent domain attorneys are hosting a complimentary seminar, "Taking Your Project from Concept Through Construction."  We have some great topics and an exciting group of experts joining us to cover topics such as implementing best practices for design-build projects during right-of-way acquisition, preparing for CEQA challenges at the condemnation stage, acquiring contaminated properties, and addressing business goodwill claims.  We will also provide a recap of the most important eminent domain court decisions and legislation from 2014.  Attendees ...

The Transportation Research Board’s 94^th Annual Meeting is well under way in Washington D.C. (January 11-15, 2015).  The meeting, which has attracted over 12,000 attendees and 300 exhibitors this year, provides an opportunity for transportation professionals to share knowledge and perspectives with colleagues and to learn about the latest developments in transportation research, policy, and practice.  More than 5,000 presentations and almost 750 sessions and workshops address topics of interest to policy makers, administrators, practitioners, and researchers.  A ...

So the new Congress has been sworn in back in Washington, and the nation gears up for the first big clash between the Republican-controlled Congress and President Obama.  What will the first major battle be:  health care; taxes; immigration?  No, the first big clash appears destined to be over the controversial Keystone XL pipeline project and the potential for over 1,000 miles of right of way subject to potential eminent domain.  As reported today by Reuters,

Republican senators kicked off the new U.S. Congress with legislation to approve the hotly disputed Keystone XL oil pipeline ...