Eminent Domain Report

A public agency’s acquisition of private property can sometimes trigger significant severance damages due to eliminating access, cutting off utility service, or taking a substantial portion of a property’s parking.  As agencies look to get more creative in minimizing exposure to large damages claims, they will sometimes offer up mitigation alternatives, such as providing an alternative access, or new utility service, or replacement parking, with such rights being granted from an adjacent or neighboring property.  These mitigation solutions are often a win-win for ...

When one hears “eminent domain” or “condemnation,” you might envision a governmental agency or utility coming in and acquiring the entirety of a piece of property and leaving nothing behind.  However, often times, condemnation does not require the entire property, but only a portion or rights to use a portion a specific way. So, what is the difference between the various terms of fee simple, an easement, full take, and part take? … 

Join us in Riverside, CA on February 7th as we provide an overview of the eminent domain process, along with best practices for right-of-way acquisition, during the International Right of Way Association (IRWA) Chapter 57 Membership Luncheon. We’ll cover everything from identifying project alternatives to ultimately acquiring specific property.

We will provide an overview of the entire process and illustrate how all of the individual components work together. In particular, we’ll discuss how to effectively navigate the precondemnation process to position for the ...

In California, a fundamental principle of eminent domain law is that an owner of property acquired by eminent domain is entitled to just compensation for the property interests taken (Code Civ. Proc. §1263.010). 

However, what if the acquisition for the public project involves only a portion of the owner’s property interests? This question arises quite often when a portion of an owner’s property is acquired for street or freeway widenings, grade separation projects, expansion of property already dedicated to an existing public use, as well as many other types of public ...

We’ve been closely watching the Sheetz v. County of El Dorado case, which has worked its way up through the California trial and appellate courts all the way to the U.S. Supreme Court. For a quick refresher, the case concerns whether legislatively enacted development impact fees (such as fees for building permits, etc.) are subject to the rough proportionality and nexus requirements (i.e., can a generally enacted permit fee be the subject of an unconstitutional taking). … 

Join me on January 8, 2024, as I present “Rights Included in Rights-of-Way” during “California Highway and Utility Rights-of-Way,” a webinar hosted by HalfMoon Education. During my presentation, I will discuss the condemnation process, landowner rights, maintenance of rights-of-way, alterations and encroachments and different types of rights-of-way used for highway purposes.

HalfMoon Education is a nonprofit continuing education provider whose mission is to develop and sponsor high-quality, timely and competitively-priced continuing education seminars ...

In California, a business operating on real property being acquired, in whole or in part, for a public project may make a claim for loss of goodwill and be entitled to compensation if the business operator establishes the foundational elements: (1) the taking caused the loss, (2) the loss could not be prevented by relocation or other reasonable mitigation measures, (3) the loss is not includable as a reimbursable relocation expense, and (4 ) the loss does not duplicate other compensation being paid.  (Code Civ. Proc. §1263.510(a).)  As part of its affirmative duty to mitigate damages, a ...

This past week I had the opportunity to attend the International Right of Way Association’s (IRWA) Region 1 Fall Forum and Symposium in San Diego, California. On Friday, Brad Kuhn and I presented an update on recent federal and state cases impacting takings, land use and development in California.  On Saturday, I was an attendee at the Fall Forum where IRWA professionals throughout Region 1 (California, Nevada, and Arizona) shared updates on the status of the industry in their area. … 

2023 has been another interesting year in the eminent domain world. We’ve reported on some interesting court decisions, we’ve seen funding make its way to some critical infrastructure projects in California and changing weather continues to make resiliency and natural disasters a hot topic for inverse condemnation law. But before 2023 winds down, there are some exciting end-of-year events and we hope to see you there.  … 

A question that arises with some frequency in our practice is whether a public entity can adversely possess a property interest against another public entity. The general rule of thumb is that a private entity cannot obtain an interest in real property owned by a public entity through adverse possession. This rule is in part based off of the long-established principle nullum tempus occurrit regi, which means "time does not run against the king."

In California, this common law principle has been affirmed and reaffirmed for over a century in our courts and has been codified by the ...