Eminent Domain Report

We’ve reported in the past that public agencies are more frequently demanding certain off-site public improvements to accommodate proposed private developments as a condition of entitlement approval.  These can range from street widenings to accommodate additional traffic, pump stations for additional water capacity, or flood improvements to address drainage or run-off concerns.  Additionally, a new condition facing California developers is dedicating or acquiring open space to mitigate wildfire risk.    

Recently, the owner of a mixed-use development project in San Diego ...

When a property owner brings a regulatory taking / inverse condemnation claim based on a city or county’s zoning decisions, the owner often provides context and history, including public statements made by staff, board members or city council members.  Are those public statements protected speech and therefore subject to California’s Anti-SLAPP statute?  A recent California Court of Appeal decision, City of Redondo Beach v. 9300 Wilshire, provides some context on what is and what is not permissible.  … 

Dodge, duck, dip, dive and… dodge. An interesting case from the United States Supreme Court yesterday. Interesting because of what it says, and interesting because of what it very explicitly declined to say.

The question presented in DeVillier v. Texas, 601 U.S. ___ (2024) was whether the Takings Clause of the Fifth Amendment was “self-executing”. That is, whether a landowner could sue a State for money directly under the Takings Clause, even if there is no statute specifically creating a cause of action (and where the closest statute very expressly does not provide a remedy ...

With the frequency of wildfires and flooding, landslides are becoming more frequent throughout California. When public agencies have water pipelines located in hillsides, the situation presents the classic “chicken or egg” debate: (1) did the soil movement cause the pipe to displace and leak water, thereby causing the landslide, or (2) did the pipe leak water independently, thereby causing the landslide? Answering this question addresses one of the key factors for liability for inverse condemnation and other real property causes of action: causation. … 

In California, when a government entity adopts a resolution of necessity to acquire property by eminent domain, that resolution typically “conclusively” establishes the requisite findings of public use and necessity. However, when the government is seeking to condemn a public utility to take over its operations, that conclusive presumption disappears. There has been an ongoing dispute about what standard of review applies in such take-over cases, and the California Court of Appeal recently provided guidance. … 

With all the recent storms in California, private property is bound to suffer impacts from storm water runoff, landslides, erosion and subsidence. Understanding whether the government bears responsibility for such damage is a complex and fact-specific analysis. However, a recent court of appeal decision, Shenson v. County of Contra Costa (2023 Cal. App. LEXIS 244), provides an excellent history on liability in these circumstances, and explains when natural watercourses, drainage improvements, and a public agency’s approval of development can trigger inverse ...

We are excited to be hosting our Eminent Domain seminars in person once again! Please join us in San Francisco on March 14th or Costa Mesa on March 28th. These complimentary programs will focus on current issues involving right of way, property acquisitions and eminent domain. Key topics to be covered by our panels of leading industry professionals include:

• Inverse Condemnation and Disaster: Exploring the interplay of natural disaster and potential liability to public entities in cases such as fire and flood;
• Environmental Considerations for Right of Way Acquisition: Identifying ...

Local government agencies sometimes enact short-term building moratoriums for certain areas to further assess changes in land use patterns or slow growth.  Those moratoriums imposed across a large area usually do not constitute a taking.  But what if a moratorium is imposed solely and specifically as to a singled-out property?  Does that moratorium give rise to a taking?  According to a recent court of appeal opinion, the answer is no, at least when that moratorium is imposed as a penalty against the property owner for violating local building codes.

Background

In Lemons v. City of Los ...

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 ...

A new decision out of the Northern District of California applying the “final action” standards of Pakdel v. City and County of San Francisco has come out – with the District Court concluding that even under Pakdel’s “relatively modest” standard, a landowner seeking to develop their property must still actually receive a final decision on the merits of their proposal before filing a takings claim in federal court.  The new case is DiVittorio v. County of Santa Clara, and the opinion by the Hon. Beth Labson Freeman helps further clarify the steps a landowner must satisfy before availing themselves of the federal court system ...

Throughout all of the ups and downs in 2021, there have been multiple developments on the eminent domain front, including the special occasion where the U.S. Supreme Court heard a takings case. Outside of case law, 2021 saw the Infrastructure Investment and Jobs Act passed, which aims to provide federal funding for infrastructure projects for many years to come. All in all, 2021 was a fairly busy year for right-of-way and eminent domain practitioners.

Click here for summaries of the prominent cases and developments in eminent domain from 2021...

Generally, if utilities with the right of eminent domain cause damage to private property during the operation of their facilities, they may face inverse condemnation liability. However, where the facility in question is not operating for the “public use” and instead was installed pursuant to a private contract, inverse condemnation may be inapplicable. … 

With the recent flurry of coastal law bills before the California State Legislature and the myriad headlines advising that we must retreat from the shore, sea level rise (SLR) and related climate change topics remain front and center in California. Join our Water Industry Group on May 27, 2021 from 11:00 a.m. to 12:00 p.m. PT for "Living on the Edge: Managing Sea Level Rise in California" as we sort through the pending legislation and discuss the basis for this ever-increasing concern with the encroaching ocean.

Comprised of attorneys from Nossaman’s Water, Environment & Land Use and ...

When a property owner suffers damage as a result of the actions of a public agency or public improvement, the owner typically pursues typical tort causes of action against the agency, along with a claim for inverse condemnation. While liability for the tort claims is decided by a jury, liability for inverse condemnation is determined by a judge. So what happens when both claims are pursued simultaneously -- should the judge rely on the jury’s determination of causation, or should the judge make his or her own findings? 

Recently in Amedee Geothermal Venture I v. Lassen Municipal ...

Providing listeners a convenient and concise medium to access timely reports on important land use topics, Nossaman’s recent podcast offerings make a great addition to your professional playlist.

First, check out Nossaman’s own Digging Into Land Use Law podcast, which covers the development of all things in, on or above the ground. Recently, I recorded the episode “Valuation and Damages: Assessing COVID-19’s Economic Impact.” Changes in how businesses operate, restrictions on property use and reduced revenues brought on by mandated closures due to COVID-19 have had ...

While nobody could have anticipated the challenges of 2020, the right-of-way industry worked through difficult issues to move critical infrastructure projects forward. On February 11, 2021, our Eminent Domain & Valuation Group presented “Eminent Domain in 2020: A Year in Review,” during which we discussed decisions in key cases and trends from California and around the country that will continue to impact the right-of-way industry going forward. If you were not able to attend the live session, we invite you to watch the on-demand presentation at your convenience. 

Typically, when a public agency acquires property by eminent domain, it names all potentially interested parties in the condemnation action. This includes the property owner, any easement holders, lien holders and usually businesses as well. If the agency does not name all interested parties, anyone with an interest may still appear in the action. Or if the party does not appear, it could potentially file a subsequent inverse condemnation action for the taking of its property interest (which could expose the agency to attorneys’ fees -- hence the importance of naming all ...

It is Christmas in July for eminent domain practitioners! We have a California Supreme Court opinion on a condemnation case, which is rare. The case, Weiss v. People ex rel. Department of Transportation (2020 Cal. LEXIS 4357), is an inverse condemnation action where the main question is this: Can you make a Code of Civil Procedure Section 1260.040 motion, also known as a Legal Issues Motion, in an inverse condemnation action? According to the Supreme Court, the answer is no, these motions are meant to address valuation issues in eminent domain actions -- not determine liability in an ...

Our presentation on "Inverse Condemnation Exposure and Management for the Energy Industry" will be available for viewing during the 2020 American Association of Professional Landmen's (AAPL) Annual Meeting. Due to the COVID-19 pandemic, this event will be held virtually and presentations will be prerecorded and available to view on demand after the scheduled live run time on June 18th. Registration is required, but access will be available as a complimentary benefit for all AAPL members.

The 2020 event still promises to be a professional development and land conference ...

Since the California Supreme Court’s 2019 Oroville decision, which narrowed inverse condemnation liability for public agencies, several court decisions have followed suit.  This week, the California Court of Appeal issued a published decision in Ruiz v. County of San Diego (2020 Cal. App. LEXIS 282), which further clarified and limited what constitutes a “public improvement” for purposes of inverse liability ...

As COVID-19 spreads throughout the globe and the United States, our national, state and local governments are taking wide-reaching but necessary actions to respond to this novel coronavirus.

On March 4, 2020, Governor Gavin Newsom declared a State of Emergency and on March 12 issued Executive Order N-25-20, which, in part, allows the California Health and Human Services Agency and the Offices of Emergency Services to enter into contracts or, if agreements cannot be reached, “commandeer” property, such as hotels, medical facilities and other facilities that are needed “for ...

While inverse condemnation liability in California originates from the California Constitution, determining when it applies -- and under what circumstances -- is based on a lengthy morass of case law that has been described by one court as “seemingly inconsistent and irreconcilable.”  If you’re interested in learning more about the subject ...

Welcome to 2020! It is a new year and with every new year, comes a lot of new: new goals, new diet, new workout routines that leave every part of you sore...  In the professional setting, a new year brings a lot of “chores,” like closing out the financials for the previous year, perhaps completing year-end reviews, and on and on, and you are left asking, “We do this every year…??”  One of those chores is almost sure to be budgeting, which is universally considered to be unpleasant. Well, imagine having to kick off the year by preparing a budget for the entire state of California, the 5^th largest economy in the world. 

Luckily, that chore was left to Governor Newsom and last week, he released his 2020 budget proposal. The proposed $222 billion dollar state budget ...

On November 27, 2019, U.S. Bankruptcy Judge Dennis Montali issued a Memorandum Decision on Inverse Condemnation (“Memorandum Decision”) in PG&E Corporation and Pacific Gas & Electric’s (together, “PG&E”) Chapter 11 Bankruptcy proceeding in the U.S. Bankruptcy Court for the Northern District of California (Case No. 19-30088).  PG&E challenged the application of the doctrine of inverse condemnation in connection with the 2015, 2017, and 2018 California wildfires.  In the Memorandum Decision, Judge Montali ruled against PG&E and instead concluded that the doctrine ...

As we have written about in past posts, the issue of inverse condemnation remains on the forefront in the state given the continuing, severe wildfire risks and other climate change impacts.  Brad Kuhn was recently quoted in the Wall Street Journal in “PG&E Isn’t Alone in Facing Liability Risk Over California Fires,” addressing liability associated with inverse condemnation.  Willis Hon also commented on the current legislative situation in an E&E News EnergyWire article:  “Legal 'whipsaw' threatens PG&E's future.”  If you’re interested in potential legislative ...

As we all get into the holiday spirit, don’t forget to keep your skills and knowledge sharp for what is looking to shape up as a very active 2020 in the projects arena.  Join our Nossaman Partners for the following year-end conferences before settling in for your long winter’s nap! ...

We recently reported on the California Supreme Court’s decision in Oroville which provided a relaxed standard for public agencies facing inverse condemnation claims.  Since that decision, a new unpublished Court of Appeal decision provides further guidance and supports the “reasonableness” analysis considered in Oroville, although in this case the decision was not as favorable to public entities with respect to determining whether the damage is caused by a public or private improvement ...

Inverse condemnation litigation and liability has become a particularly hot topic in California over the last several years.  Not many attorneys specialize in this area, and there are a number of traps for the unwary lawyers, public agencies, and property owners involved in such litigation.  A recent Court of Appeal decision provides some important lessons for all parties involved, including the risks of settling inverse condemnation claims with insurance companies, and pitfalls in recovering attorneys' fees ...

On June 5, 2019, the California Supreme Court (Court) heard oral argument in the case City of Oroville v. Superior Court of Butte County, Case No. S243247 (Oroville Case). This case is notable because it is the first time that the Court is weighing in on a significant case concerning the doctrine of inverse condemnation since Bunch v. Coachella Valley Water District ...

Like the vast majority of general civil litigation, eminent domain matters usually settle before going to trial.  The resolution is typically documented in either a stipulated judgment or a settlement agreement.  What is unique to eminent domain, however, is that the settlements oftentimes take place before the public project is fully constructed, meaning the parties are resolving their claims based on the "project as proposed," without seeing the actual finished product or fully understanding its impacts on the property.  In documenting a settlement, property owners can ...

We welcome you to join our Partners at several upcoming presentations on eminent domain topics taking place near and far.

First, Nossaman's Eminent Domain & Valuation Practice Group Chair Brad Kuhn will be presenting during Nossaman's 2019 Land Use Seminar on May 21st, in Costa Mesa, CA.  Brad will be part of a discussion concerning the very timely topics of Managed Retreat and Sea Level Rise.  This is an area of great interest for both private landowners, cites and towns, and public agencies alike, and the presentation will provide an overview of the current proposals and ...

Many public agencies and utilities have easements for water or gas pipelines or electric transmission lines.  Those easements typically contain express rights to construct, operate, and maintain the facilities, including rights of access; but oftentimes the easements are silent on what rights are reserved to the private property owner, including whether the owner can place trees or other improvements within the easement area.  As utilities and public agencies are undertaking more thorough efforts to protect and maintain their rights-of-way, they are commonly seeking to remove ...

In Governor Gavin Newsom’s first State of the State address, he called for the creation of a strike force charged with developing a comprehensive strategy to address the destabilizing effect of catastrophic wildfires on the State.  On April 12, 2019, Governor Newsom announced the results of that dedicated effort, in the form of a report titled Wildfires and Climate Change: California’s Energy Future (Strike Force Report).  Governor Newsom also summarized the findings of the Strike Force Report in a press conference that can be viewed here.

The Strike Force Report first sets out ...

Please join Nossaman Eminent Domain & Valuation Partner Rick Rayl at CLE International's 21st Anniversary Southern California Eminent Domain Conference.  The event will be held from Thursday, January 31^st through Friday, February 1^st at the DoubleTree Downtown in Los Angeles.  Rick will participate in the presentation, Case Law Update:  The Latest Developments, on January 31^st at 10:45 a.m.  Additional topics covered during the conference will include: Government Regulation of Short-Term Vacation Rentals, Insights into Severance Damages, and California’s Wildfires and Potential Inverse ...

With the recent widespread reports of sea-level rise triggered by global warming, the California Coastal Commission -- a state agency which regulates coastal development -- plans to release a proposal in early-2019 which provides guidelines to local jurisdictions on how to combat the potential impacts.  The stakes are enormous, as the Commission believes many homes along California's 1,100 miles of coastline will inevitably be wiped out by a rising ocean.  According to an article by Anne Mulkern in E&E News, Calif. prepares policy for coastal 'retreat', the suggested ...

When the government physically takes or occupies property without first going through the rigorous procedural requirements under California eminent domain law, usually it's a clear-cut case of inverse condemnation liability.  But a recent California Court of Appeal case provides a unique exception involving property subject to dedication.

In Prout v. California Department of Transportation (Dec. 18, 2018, 2018 Cal. App. Unpub. LEXIS 8523),  Caltrans sought to use a 1.3-acre strip of land to make improvements to Highway 12 in Calveras ...

In a recent unpublished Court of Appeal decision, Downs v. City of Redding (October 30, 2018), the Court took up two distinct issues: (a) whether a contractor’s use of property for construction staging constitutes a taking when such use is not authorized by the agency, and (b) whether "just compensation" requires payment of damages for the taking of a tree.  Both of these issues are common occurrences in many of the projects we work on and while the Court’s holdings may not come as a surprise, they are a good reminder of the fairness and equity courts apply to such issues ...

On August 31, 2018, the California Legislature passed Senate Bill (SB) 901, which addresses a number of wildfire-related items relating to public utilities.  Governor Brown signed the Bill into law on September 21, 2018.

While the bill introduces a series of new changes, it is particularly noteworthy for what it does not include from Governor Brown’s initial June 2018 proposal for wildfire liability reform.  At least for the time being, lawmakers abandoned the most controversial aspect of Governor Brown’s proposal for the bill: modifying California's strict liability ...

When a governmental agency improperly denies a permit application for a new development, and the proposed development is thereby delayed, does this result in a regulatory taking?  As we've seen in some prior cases, such improper governmental actions can trigger liability, but it is uncommon.  A recent Court of Appeal decision, Bottini v. City of San Diego (Sept. 18, 2018), highlights just how difficult it is for a property owner to pursue a regulatory taking due to a delay caused by a city's improper denial of a development application.

Background

Bottini concerns the ...

When state and local governments impose unreasonable conditions or exactions on private property, owners pursuing a regulatory takings claim often face a maze of procedural obstacles just to have their case heard. I once described these procedural obstacles as resembling Alice's trip through Wonderland, with the parties falling in and out of state and then federal court (instead of a rabbit hole) based on procedural and substantive rules that often seem as logical as the Mad Hatter's recitals at the Tea Party. The reason for this maze stems from (i) a U.S. Supreme Court decision ...

As we’ve seen all too many times in California, when local municipalities delay development approvals -- even improperly -- courts are reluctant to find liability under an inverse condemnation cause of action and award temporary damages. While there have been some successful cases (see Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161), those results are the exception, not the rule.  A recent court of appeal opinion, Mahon v. County of San Mateo 2018 Cal. App. Unpub. LEXIS 1483, provides an example of the uphill battle a property owner faces in successfully ...

As any experienced California eminent domain lawyer knows, there is a unique statutory mechanism that allows parties to bring a legal issues motion to secure a court’s ruling on a litany of issues that impact compensation. This statutory right is set forth in Code of Civil Procedure section 1260.040 and reads as follows:

"(a)          If there is a dispute between plaintiff and defendant over an evidentiary or other legal issue affecting the determination of compensation, either party may move the court for a ruling on the issue.  The motion shall be made not later than 60 days before ...

Infrastructure projects take years to develop:  the environmental review, funding, design, procurement, and construction of a public project is time consuming in any state, but even more so in California given the strict regulations and oversight any public agency must comply with.  During that lengthy process, private properties situated in the proposed project alignment remain in a state of flux.  When those impacted properties are slated for development, what are the parties to do?

According to an article in the Morgan Hill Times, Council OKs new housing in one of two ...

Two of the more complicated issues eminent domain attorneys face are analyzing whether government conduct rises to the level of a taking, and whether the government engaged in precondemnation conduct that gives rise to damages apart from paying just compensation.

Earlier this week, an unpublished California Court of Appeal decision, Dryden Oaks v. San Diego County Regional Airport Authority, grappled with both issues. (See update below.)

In Dryden Oaks, a developer purchased property near the Palomar Airport in Carlsbad.  The property was in an area governed by the San Diego ...

Under inverse condemnation law in California, a public agency is generally strictly liable for physical damage to private property caused by a public improvement.  This means a public agency can be held liable even if the public improvement was properly designed, constructed and maintained.  Rarely is there a question of whether a project constitutes a "public improvement," but in Mercury Casualty Co. v. City of Pasadena (Aug. 24, 2017), the Court of Appeal recently addressed this issue and held that a tree constitutes a work of public improvement for purposes of inverse ...

When a business is taken as a result of a public improvement, the business is entitled to seek compensation for, among other things, loss of business goodwill. Typically, this loss is calculated by measuring the business’ before-condition value and comparing to its after-condition value.  This traditional methodology was the cornerstone for business goodwill appraisers to determine just compensation.  Yet late last year, the California Court of Appeal issued a ruling in People ex rel. Dep't of Transp. v. Presidio Performing Arts Found. (2016) 5 Cal. App.5th 190 which may have ...

We don’t often see multiple takings-related cases in one week, but last week we saw three.  The California Supreme Court’s decision in Property Reserve was obviously the most important, but the Fourth Appellate District Court of Appeal in San Diego also issued two decisions in the same week.  Although both of these opinions are unpublished and cannot be cited, they act as a reminder for property owners to be mindful of some basic principles of eminent domain law.

The first case, SANDAG v. Vanta, addresses some of the limits on the principle of just compensation and, in particular ...

One of the most valuable assets many homeowners enjoy is their property’s view. If the government undertakes an activity that eliminates or obstructs that view, is an owner entitled to relief?  In Boxer v. City of Beverly Hills (April 26, 2016, B258459), the California Court of Appeal held that in an eminent domain action (where there is a direct taking of property), view impacts are compensable, but in the absence of a taking of property, a property owner is not entitled to compensation for loss of view.

Background

In Boxer v. City of Beverly Hills, a group of property owners filed an ...

On November 4, 2014, San Benito County voters went to the poles to vote on Measure J, the measure designed to prohibit hydraulic fracturing, known as fracking, and related gas and oil extraction activities, as well as other "high-intensity petroleum operations," including acid well stimulation and cyclic steam injection. The measure also banned any new gas or oil drilling activity - even conventional, low-intensity activity - in areas the county zoned for residential or rural land use.

With 59% of the vote, supporters approved Measure J in an effort to protect the local environment ...

Property owners are routinely hiring attorneys well in advance of a public agency's filing of an eminent domain action.  Many times, the representation begins before it is even certain whether the agency will actually move forward with acquiring the property.  And sometimes, claims for inverse condemnation may ripen during the public agency's construction of the project on other nearby properties.  When this overlap exists between inverse condemnation and potential future eminent domain actions, owners should be careful to assess how the attorney will be compensated.  A recent ...