Eminent Domain Report

Developers often have to satisfy various conditions of approval in order to achieve the necessary approvals to move forward with a project.  Sometimes these conditions include requirements to acquire land for public improvements, such as a new sewer line or road, and those improvements are often located on property not owned by the developer.  When the developer is unable to acquire those rights through voluntary negotiations, the city imposing the conditions of approval is generally required to use eminent domain to acquire the rights for the developer …

In Knick v. Township of Scott, 139 S.Ct. 2162 (2019), the Supreme Court reversed over three decades of precedent when it eliminated the requirement that a plaintiff exhaust state court remedies before pursuing a takings challenge in federal court.  After the Supreme Court’s decision, federal courts experienced a significant uptick in the number of federal takings lawsuits.  In Gearing v. City of Half Moon Bay, the City was able to convince the federal court to take a back seat and allow a later-filed state court eminent domain action to proceed while the federal takings lawsuit was put ...

The California Coastal Act is a regulatory regime with many layers and complexities. Generally, however, the Act requires development within a designated coastal zone to obtain a coastal development permit. This permit may be issued by the local jurisdiction, the California Coastal Commission, or in rare cases, by both the local jurisdiction and the Coastal Commission. Even if the local jurisdiction has the authority to issue the permit in the first instance, the California Coastal Act may allow an aggrieved party to appeal the local jurisdiction’s decision to the California ...

The U.S. Supreme Court ruled last week that the Centers for Disease Control and Prevention (CDC) exceeded its authority when it imposed a national eviction moratorium. More precisely, in Alabama Association of Realtors v. Department of Health and Human Services, the Court agreed with a district court determination that the CDC acted unlawfully in banning evictions of residential tenants who declare financial need in counties with high COVID-19 rates. In its decision, the Supreme Court concluded, “If a federally imposed eviction moratorium is to continue, Congress must ...

Property dedication requirements and eminent domain usually don’t mix well: they make for an odd and confusing set of valuation rules. For example, if an agency seeks to condemn property to build a road through an undeveloped area, but that road would be required in order to develop the properties, how should it be valued? Under one set of eminent domain rules (the Porterville doctrine), the property subject to dedication has little value since it would have to be given up as part of any future development. Under another set of eminent domain rules (the “project influence rule” ...

The Supreme Court of the United States rarely hears anything related to eminent domain or takings cases; the Kelo decision in 2005 was the latest “big” case for our industry, although the 2019 Knick decision also made headlines. But in the last week, SCOTUS has shown a keen interest in property rights, rendering several impactful decisions – with a focus on California in particular.

We just reported on the Cedar Point Nursery decision, where the Court found that a regulation allowing unions to access private property constituted a taking. Now, the Court has issued several more ...

On June 23rd, the United States Supreme Court held that a California regulation allowing labor organizations to intermittently access agricultural employers’ property was an unconstitutional taking. The Court reversed the decision from the Ninth Circuit Court of Appeals, an outcome we predicted in our post last year about this issue. The decision is a major victory for property owners, and raises questions going forward about a public agency’s ability to regulate private property rights—particularly as it pertains to allowing temporary access … 

In the City of Fresno, the Tower Theatre is a bohemian landmark, opened in 1929 as a 20th Century Fox Movie House. This year, it became public that Adventure Church was buying the theatre, which has caused tensions to rise in the community, with thousands signing a petition to save the historic theatre, weeks of demonstrations trying to prevent its use as a church, and even a pending lawsuit. The City attempted to defuse the situation by offering Adventure Church an alternative location, which also backfired. So what’s next? The City may be considering using eminent domain to prevent ...

When is a lease termination triggered by eminent domain versus by contract?  The case of Media v. City of San Diego, 2021 U.S. Dist. LEXIS 103728 addressed this question and concluded that the lease termination was only a product of the lease naturally terminating, not the governmental acquisition of the underlying property.  This opinion raises questions regarding the future of loss of goodwill and furniture, fixtures, and equipment (FF&E) for short-term tenants.

Background

A billboard owner had been leasing property to display the billboard for many years when it was converted to a ...

Throughout the United States, old railroad corridors are being abandoned and converted into other uses, such as hiking, biking or other trail purposes. This converted use makes sense, as it is difficult to otherwise compile a long stretch of right-of-way that would be needed to create such trails. But are adjacent property owners entitled to some sort of just compensation when this conversion takes place?  The answer is maybe. 

Before a railroad operator can abandon its right-of-way, it must first secure approvals by the Surface Transportation Board. When that abandonment process ...