Eminent Domain Report

For the better part of a year, we've been writing about the controversial proposal to use the power of eminent domain to condemn underwater mortgages, allowing homeowners to have a new loan that better reflects the underlying value of the property. 

While the proposal originates from a private company, Mortgage Resolution Partners, much of the media attention focused on a single geographic location:  San Bernardino County, where (at least according to the Wall Street Journal) Mortgage Resolution Partners claims 42,000 of the County's 59,000 privately held mortgages are ...

As we previewed in our recent "year in review" piece, the U.S. Supreme Court has some takings issues before it this term.  One case, Koontz v. St. John's River Water Management District, took center stage yesterday. 

At issue in the case is whether the the "nexus" and "proportionality" tests that we have all come to know in the context of real property dedications also apply to other efforts to impose exactions relative to property-development efforts. 

The case presents a new branch on the tree that arises from cases such as 1987's Nollan v. California Coastal Commission, in which ...

As recently reported in the San Clemente Times, Caltrans is scheduled to begin construction on the Interstate 5/Ortega Highway Interchange project in mid-February.  (See Brian Park's article in the San Clemente Times, Jan. 10, 2013.)   The project, which will reconfigure the Ortega Highway bridge and a number of on-ramps and off-ramps in order to relieve congestion, has had substantial impacts on property owners and businesses.  According to the article, Caltrans anticipates having a complete project schedule by the end of the month.     

As we mentioned in our recent 2012 Eminent Domain Year in Review, we've seen a boom of infrastructure projects in California -- a trend we expect to continue into the near future.  So what exactly are we talking about?  Here's just a few examples:

• California Transportation Commission's $64 Million Allocation:  According to a Caltrans press release, the California Transportation Commission (CTC) recently allocated $64 million to 43 projects that will reduce traffic congestion and repair highways, local streets, and bridges.  You can find a list of the projects ...

For our readers who do not subscribe to Nossaman's Eminent Domain & Valuation Group E-Alerts, I'd suggest you check out our 2012 Eminent Domain Year in Review & 2013 Forecast.  There have been a lot of published court decisions this year, along with some interesting stories making the headlines.  The year in review is a nice, concise summary of what's taken place, and also a look forward to what to expect in 2013. 

We hope you've enjoyed our blog over the last few years.  If you have any suggestions for other topics or materials, or if we put out too much or too little content, please let us ...

In order to construct the Silva Valley Interchange on Highway 50, the El Dorado County Board of Supervisors passed a Resolution on January 4, 2013 to acquire approximately 12 acres by eminent domain.  As reported by In El Dorado County, the county could not negotiate a deal with the owner of a 52 acre block of which the county seeks the 12 acres. The owner did not oppose the project but expressed concerns as to the impacts it would have on his remaining acreage. 

While the Board maintains that using eminent domain is not common for them and Caltrans forced its ...

This is a bit last minute, but I wanted to remind our readers to attend the International Right of Way Association (IRWA) meetings this week in Orange County and the Inland Empire.  Here's what to look out for:

• IRWA Chapter 67:  Orange County holds its monthly luncheon today, January 8.  John Ellis from Integra Realty Resources Los Angeles will provide us with an update on the 2012 real estate market and what to expect in 2013.  John and Integra are integrally tapped into the Southern California real estate market, so those in attendance should get some great insights. 

The Court has once again reminded us that it takes its role as gate keeper seriously.  This week, in an unpublished case, the Court of Appeal issued a decision that serves as a not-so-gentle reminder that business owners are entitled to loss of business goodwill only if they meet the four threshold requirements set forth in CCP § 1263.510: (1) the loss is caused by the taking, (2) the loss cannot be prevented by relocation of the business or taking steps a reasonably prudent person would take to preserve goodwill, (3) compensation was not paid through relocation funds, and (4) the ...

One of the prerequisites to instituting an eminent domain action is the governing agency's adoption of a resolution of necessity to acquire the necessary property.  At the time of adopting the resolution, the agency cannot be precommitted to moving forward with the condemnation.  In other words, the resolution hearing cannot simply be a "rubber-stamped," predetermined result.  

While it has happened, it is a very difficult, uphill battle for a property owner to prove that the government agency was precommitted to the taking at the time of the resolution hearing.  The agency can -- and ...

After passing on a number of Fifth Amendment issues in recent history, the U.S. Supreme Court is scheduled to hear three cases this term in which the takings clause plays a prominent role.  And today, the Court addressed the first of these three cases, holding that a temporary-flooding can result in a taking requiring just compensation under the Fifth Amendment.  

In Arkansas Game and Fish Commission v. United States, the Arkansas Game and Fish Commission argued that a temporary but reoccurring flooding of its property resulted in a taking requiring just compensation.  The ...