Eminent Domain Report

Improving California's infrastructure continues to be a major focus across the state.  We've been reporting for months the stream of funding that is making its way towards much needed transportation projects.  This week California saw a major influx of additional Proposition 1B funding to the tune of $2.2 billion which will be spread across 146 highway, transit and rail projects.

• In Los Angeles, Caltrans reports that money is being spent on high occupancy vehicle (HOV) lanes on US 101, along with rehabilitation of the I-710, I-5, and SR-60 freeways.  
• For the San Diego folks, check out ...

On July 29, 2011, the California Court of Appeal issued an unpublished decision confirming that when condemned property is subject to a roadway easement, and the property owner fails to demonstrate that there is "something special attaching to it," regardless of how the property is ordinarily bought or sold, the landowner is only entitled to nominal value.

In People ex rel. Department of Transportation v. Bakker, No. F060030, the California Department of Transportation (Department) condemned 18.13 acres of land belonging to the Bakkers, 4.4 acres of which were subject to a ...

The California redevelopment circus continues today, as California's Secretary of State approved two potential referendums for the 2012 ballot.  One involves rural homeowners and payments for fire services; for our purposes, it's not very exciting (and since I'm pretty sure I don't live in a rural area, I'm not going to join that fray). 

But the other one is more interesting.  It's a proposal promoted by eminent domain opponent Marko Mlikotin to overturn AB X1 27.  For those who have trouble keeping score with all the bill numbers, this is the one that allows California's redevelopment ...

While the redevelopment battle wages on in California, there's a somewhat similar discussion taking place on Capitol Hill.  We reported back in April about the House Judiciary Committee's consideration of H.R. 1433 -- the "Private Property Rights Protection Act of 2011" -- a bill that would prevent states and municipalities from using eminent domain for economic development purposes (such as redevelopment) on any project for which the agencies are receiving federal funding.  But there has not been much news since.  That may all change today.

According to an Energy & Environment ...

Anyone who's ever been involved in real estate development knows that as part of the permit approval process, developers are routinely required to make concessions to the government in order to move forward with proposed development plans.  And, if you're building near the coast, you usually need to jump through even more hoops (sometimes backwards and through fire) to please the Coastal Commission.  But when do the demanded concessions go too far?

We've covered in the past the "rough proportionality" and "nexus" requirements that development conditions must ...

The heavy-weight boxing match continues:  after California Attorney General Kamala Harris filed an "informal" opposition, the California Redevelopment Association (CRA) has countered with a not-so-"informal" reply brief of its own in an effort to overturn AB1X 26 and AB1X 27.

The CRA's informal reply requests oral argument in the Fall of 2011 since no one seems to dispute the urgent need for the California Supreme Court to decide the constitutionality of the recently passed legislation.  The CRA then focuses on the Attorney General's request to consider the statutes ...

Want to know what's going on with some of Southern California's largest infrastructure projects?  Here's a quick update.

• I-5 Corridor Improvements:  If you live in California, you've almost certainly spent many hours on the 5 freeway.  It runs from the US/Mexico border all the way through Oregon and even up into Canada.  With Southern California's population growth, Caltrans has invested over $3 billion to improve two areas of the I-5 over the next five years:  (i) the segment between the Orange County line and the San Gabriel River Freeway (I-605); and (ii) the segment between the ...

As originally reported by Robert Thomas at inversecondemnation.com, a petition for certiorari was filed asking the U.S. Supreme Court to address "[w]hat category of takings are subject to heightened judicial scrutiny, and when is the risk of undetected favoritism so acute that an exercise of eminent domain can be presumed invalid?"  While Justice Kennedy brought this issue to the national stage when he raised the possibility of such conduct in a recent concurrence, as of today, and likely tomorrow, the question remains unanswered. 

In Kelo v. City of New ...

The battle continues over redevelopment in California.  Yesterday, the Attorney General filed an "Informal Opposition to Petition for Writ of Mandate."  The document is 20 pages long, with a 4-page list of Legal Authorities, so it really isn't very "informal"; still, that's what she called it.

Not surprisingly, Attorney General Kamala Harris takes the positions that:

1. AB1X 26 and AB1X 27 are constitutional, and
2. The CRA has not justified a stay in their enforcement. 

The Attorney General does not challenge the CRA's decision to file its lawsuit directly in the California Supreme ...

While Governor Brown's push to eliminate redevelopment agencies seemed to drag on forever, California's redevelopment agencies were not so slow to act once the long-contemplated ABX1 26 and ABX1 27 became law.  On Monday, the redevelopment agencies filed suit directly in the California Supreme Court seeking to overturn the recent enactments.

The redevelopment agencies are represented by the California Redevelopment Association and the League of California Cities.  San Jose and Union City also joined in the lawsuit claiming they will face elimination since they cannot make the ...