Eminent Domain Report

Yesterday, the City of Richmond caught a small reprieve with respect to its plan to condemn underwater mortgages.  As reported by Reuters, the federal district court ruled that the lawsuit filed by lenders Wells Fargo, Deutsche Bank and The Bank of New York Mellon is unripe. The judge denied the lenders' request for an injunction to halt the City's plan to condemn underwater mortgages even though the lenders argued that the City's use of eminent domain in this context is unconstitutional.  Next Monday, the judge will decide whether to dismiss the action or leave it pending.

Despite three major banks filing federal lawsuits against the City of Richmond last month related to its plan to condemn underwater mortgages, the City continues to press on.  On Tuesday, the City voted 4-3 to continue its partnership with Mortgage Resolution Partners (MRP), the mastermind behind the scheme. (See articles from The Press Enterprise and Contra Costa Times.)   The council and MRP will form a Joint Powers Authority to administer the plan and will attempt to attract more cities to join the effort. 

While the City is still moving forward, there continues to be ...

The Southern California Chapter of the Appraisal Institute holds a great conference each year covering a variety of hot-topic issues.  The 2013 Conference will be held this Thursday, September 12, 2013, and my partner Rick Rayl and I will be presenting on the future of redevelopment in California.  So, if you're interested in what's played out over the last year for redevelopment agencies, what lawsuits have been filed, what projects are moving forward, and what the future holds for all the property that is now owned by the successor agencies, come join us.  

The rest of the Conference is ...

In July, the City of Hayward passed several resolutions of necessity to acquire property for its Interstate 880 / State Route 92 Reliever Route Project.  The Project will extend Whitesell Street to provide access to State Route 92 from Winton Avenue, which is more of an industrial area.  While it sounds straight-forward, there appears to be some complex acquisitions.  Last week, the San Jose Mercury News provided some insight to the complicated project.

The city prides itself on never having filed an eminent domain action for its public project and here, the city is only seeking to ...

Eminent domain cases typically revolve around a "date of value" – the date on which property is valued in determining the amount of just compensation the condemning agency must pay.  That date is set by statute; typically, it is the date on which the agency deposits the amount of "probable compensation" to be awarded.  But sometimes, the agency's activities, such as project planning and acquisition efforts, negatively affect the value of the property.  In such circumstances, property owners may attempt to hold the agency responsible for such declines in value by claiming (1 ...

Downzoning property is always a thorny issue:  on the one hand, zoning changes are typical, "police power"-type governmental activities; on the other hand, they can significantly impact property values, and in some cases can result in governmental takings liability.  When a property owner experiences a change in zoning, there are typically two theories that can be pursued:  one is so-called "spot zoning," and the other is a regulatory taking.  

Under the first theory, "spot zoning," a property owner can have a zoning designation invalidated if it can prove the government targeted the ...

I'll give you a hint, this is a bit of a trick question.  Give up?  Okay.  Whenever you name a State agency, of course. 

In Lavine v. State of California (pdf), a property owner filed a lawsuit after the Regional Water Quality Control Board adopted, and the California State Water Resources Control Board approved, a ban on on-site septic systems in Malibu.  (Case No. B238030, Aug. 20, 2013, Unpublished.)  The plaintiff owned a single-family residence in Malibu that utilized an on-site septic system; no public sewer system was available to residences in the area.  Although the ...

Eminent domain attorneys struggle with a concept foreign to most civil litigators:  figuring out the roles of the judge and jury.  Even most non-attorneys know the basic rule of trial:  the jury is the "fact-finder."  But in eminent domain cases, things are a bit different. 

The jury still acts as fact-finder, but only in one arena:  the quest to determine the amount of just compensation to which the owner is entitled.  This narrow scope means that the judge ends up ruling on all issues of law, plus mixed issues of fact and law, plus pure issues of fact to the extent those issues don't go to the issue of ...

It appears the raisin handlers' luck in the recent U.S. Supreme Court decision Horne v. US Department of Agriculture has spawned a new federal takings challenge by another group of fruit growers.  This time it's a group of tomato growers asserting a takings challenge against the federal government, with a bit of a twist.  (And yes, I had to check, but both raisins and tomatoes are technically fruits -- see the things you learn?)

According to an article in the Packer, Tomato growers say eminent domain applies to 2008 crop, tomato growers are suing the federal government for $40 million in ...

Money is once again being allocated to improve public infrastructure in California.  The California Transportation Commission announced this week the award of $487 million to various projects throughout the state.  Included are:

• San Bernardino Associated Governments' (SANBAG) Lenwood Road Railroad Grade Separation Project in the City of Barstow.
• Orange County Transportation Authority's (OCTA) Lakeview Avenue Grade Separation Project in the City of Placentia.
• The Richmond Rail Connector for a new route between San Pablo and Richmond.
• Several Caltrans State Highway ...