Eminent Domain Report

When public projects are being constructed, surrounding property owners typically experience construction impacts, such as noise, dust, fumes, vibration and road detours.  Typically, absent a physical taking of property, those construction impacts are not compensable under an inverse condemnation claim unless the property owner experiences a direct, substantial, and peculiar impact.  While this has generally been the law in California for quite some time, a recent published California Court of Appeal decision, Today’s IV, Inc. v. Los Angeles County Metropolitan ...

With the passing of California's new gas tax (SB1) earlier this year, local government agencies have come across a new source of funding to complete public infrastructure projects.  According to an article in the Ceres Courier, Caltrans Seeks Comments on Service Road Interchange, the City of Ceres hopes its Service/Mitchell/Highway 99 Interchange project can benefit from the new funds.  As part of the project, Caltrans and the City are planning one of the State's first "diverging diamond" designs, which would add a new interchange at Service Road and modify the Mitchell ...

Earlier this year in City of Livermore v. Baca, the California Court of Appeal held that as long as an expert can identify damages arising from a taking or public project, those damages likely will not qualify as speculative, and they can be presented to a jury in an eminent domain action.   Did this broad holding turn upside down traditional rules of admissibility and recovery of damages, or did it just affirm existing law?  And how will courts apply Baca in the future?  Two recently issued unpublished appellate decisions may help guide the way.

The Superior Coatings Decision

Last ...

Last week, I reported on Kimco of Evansville, Inc. v. State of Indiana, an access-impairment case pending for consideration by the U.S. Supreme Court.   

In an order earlier today, the Court denied the Petition for Writ of Certiorari.  This is not entirely surprising; in the same order in which the Court denied the Petition in the Kimco case, the Court also denied similar petitions in 175 other cases.  The Supreme Court grants Petitions in less than five percent of the cases presented to it.  

The Court still has pending before it another eminent domain case, Stop the Beach ...

According to a January 10 post on the Fox Rothschild Eminent Domain & Real Estate Litigation Blog, the U.S. Supreme Court is scheduled to hold a conference this week on whether to grant a Petition for Writ of Certiorari on an access-impairment claim arising from a condemnation case in Indiana, Kimco of Evansville, Inc. v. State of Indiana. 

Post author David Snyder explains that the need for Supreme Court review arises from a "general rule" in most states that damages arising from access impairments are not compensable as long as the owner is left with reasonable access, and the belief ...