Eminent Domain Report

Despite being destroyed and dismantled, redevelopment in California has been born once again, this time reincarnated under the name of "Infrastructure Financing Districts."  Last week, Governor Brown signed into law AB 471, which amends section 53395.4 of the California Government Code to allow infrastructure financing districts to finance a project or portion of a project located within a redevelopment project area or former redevelopment project area.

Infrastructure financing district law now provides a mechanism to finance projects that would have otherwise ...

The City of Bakersfield can now purchase property in the path of the Centennial Corridor Project between the Westside Parkway and Highway 58.  Under the early acquisition federal program, the City of Bakersfield may purchase properties from homeowners willing to voluntarily sell their property.  Approval for early acquisition of the sites will be requested at the next City Council meeting on March 5th.

On the other hand, the City may begin eminent domain proceedings for the 24th Street Widening Project to acquire the 23 homes in the project’s path.  The EIR for the project was approved ...

On Wednesday, a Nebraska District Court dealt the Keystone XL pipeline project a heavy blow.  The court invalidated a law that allowed the state's governor to approve the pipeline's passage through Nebraska.  The court ruled that the state's legislature circumvented the Public Service Commission (PSC), which regulates pipelines and other utilities, by allowing the governor to approve the route the pipeline would take through Nebraska.  The law also improperly granted TransCanada the power of eminent domain to acquire property within Nebraska, another decision that should ...

As we reported last month, the United States of America and the Federal Aviation Administration had filed a motion to dismiss a lawsuit brought by the City of Santa Monica in federal court seeking to confirm its alleged right to control the fate of the Santa Monica Airport.  Yesterday, the federal court threw out the City's lawsuit, holding that:

• The Quiet Title Claim was time-barred;
• The takings claim had to be brought before the United States Court of Federal Claims pursuant to the Tucker Act; and
• The Tenth Amendment and Fifth Amendment Due Process Claims were not ripe.  

The federal court ...

As recently reported by Aaron Kinney of the San Mateo County Times, State Senator Jerry Hill is planning to introduce legislating requiring the California State Lands Commission to acquire the private property of a Silicon Valley billionaire.  According to the report, after buying beachfront property for $37.5 million, Vinod Khosla, whose net worth was estimated at $1.5 billion as of September 2013, decided to preclude the public from using a private access road leading to his property and the beach.  Some local residents were apparently upset by the closure ...

The California Transportation Commission allocated $138 million to 32 projects around the state at its January 29th, 2014, meeting.  As Caltrans director Malcolm Dougherty put it:

From one end of the state to the other transportation projects are providing good paying jobs while at the same time reducing traffic congestion for the people and businesses in California.

Many of the projects receiving funds are directly aimed at easing commutes.  Some highlights include:

• $8.5 million to Metrolink for its High Speed Readiness Program
• $11.9 million for the Raymond Avenue grade ...

I saw a couple of California redevelopment-related stories over the past week that seemed worthy of at least a brief comment.

First, a court decision involving a rather bold argument by a public agency.

The City of Loma Linda, like so many California cities, used to have a redevelopment agency.  That redevelopment agency acquired property and embarked on various efforts to, well, redevelop things.  When Governor Brown eliminated California's redevelopment agencies, many projects were left in mid-stream.

In the case of Loma Linda, the redevelopment agency purchased some ...

Earlier this month, the California Court of Appeal answered a question that had been outstanding for almost two decades: What standard of review applies to beneficial spot zoning? In Foothill Communities Coalition v. County of Orange, that question was finally answered when the Court held that beneficial spot zoning will be valid only when the record demonstrates that the zoning is "in the public interest."

In 1996, Associate California Supreme Court Justice Stanley Mosk stated in a concurring decision that although courts are traditionally deferential with respect to zoning ...

Landowners routinely have to give up something in return for a government agency’s granting a discretionary permit. However, there are limits, as the government agency cannot typically demand conditions that are not proportional or related to the impacts that would be created by the proposed project. These limits are referred to as the nexus and rough proportionality standards set forth in the well-known United States Supreme Court cases of Nollan v. California Coastal Commission (1987) 483 U.S. 825 and Dolan v. City of Tigard (1994) 512 U.S. 374.

In Powell v. County of ...

On July 6, 2012 President Obama signed into law MAP-21, which, among other things, contained new National Environmental Policy Act ("NEPA") requirements for the Federal Transit Administration ("FTA") and Federal Highway Administration ("FHWA").  Earlier this month, pursuant to a mandate in MAP-21, FTA and FHWA adopted new regulations governing the implementation of two new categorical exclusions.  The two new categorical exclusions apply to (1) projects within an existing right-of-way, and (2) projects receiving limited Federal funding.  

NEPA is the ...