Eminent Domain Report

The use of "government stimulus" spending to spur economic growth has been a point of heated political controversy for the past several years.  A proposal outlined by President Obama over the weekend involves spending $50 billion on the nation's transportation infrastructure, focusing on the aging highway system, rail lines, and airports. 

According to a September 7 Wall Street Journal article by Gary Fields, "Obama in Infrastructure Push,"

At a Labor Day rally in Milwaukee, Mr. Obama said the initiative would be part of a larger effort to fix 150,000 miles of roads, lay or rebuild ...

From 1901 to 1961, the Pacific Electric Railway -- or the "Red Car" -- operated as one of Southern California's primary mass transit options, connecting Orange and Los Angeles Counties in a large series of rail corridors.  Now, officials are examining ways to reuse the West Santa Ana Branch Corridor, an abandoned 20-mile rail corridor running from Santa Ana to Paramount. 

According to a June 14 Orange County Register article, "Is reusing the old Pacific Electric Railway a possibility?, the hope is that someone can find a way to use the abandoned rail line to ...

The City of Newport Beach is working on a plan to widen Jamboree Boulevard adjacent to State Route 73 (the northern end of the San Joaquin Hills Toll Road).   The city has acquired much of the property needed for the larger right-of-way, but has not been able to reach agreement with the owner of the Back Bay Court shopping center.   On Tuesday night, the city authorized proceeding with an eminent domain action to acquire the property.

According to a June 9 Orange County Register article by Jeff Overley, "City OKs using eminent domain on mini-mall" ...

Sorry you haven't seen a post from me in a few weeks.  My wife and I just had our first child (a future super star eminent domain attorney, of course), and I've been on "dad duty."  My colleague Rick Rayl has been holding down the blog fort, although upon my return I see he's been blogging about things such as Canadian companies and mining rights in Nevada.  Now that I'm back, how about some California eminent domain news?

In the article "Sanitation Company Eyes Country Club Property," Tehachapi News is reporting that the Brite Canyon Resource Recovery (a division of the Golden ...

Earlier this week, Chino Hills voted 3-0 (with two members abstaining for conflict reasons) to appeal an earlier court ruling that the Public Utilities Commission has "exclusive jurisdiction with regard to the right-of-way property rights issue between the City and SCE regarding the Tehachapi Renewable Transmission Project route through Chino Hills."  

Southern California Edison's Tehachapi Renewable Transmission Project is a massive, $1.8 billion project designed, in large part, to connect wind farms in the Tehachapi area to the main electrical grid.  The project ...

One interesting valuation issue eminent domain attorneys and appraisers run into in California is when a "special use" property -- such as a church or school -- faces condemnation.  How does one value such a property when there is no relevant market or comparable sales to rely on? 

The Legislature enacted Evidence Code section 824 to deal with such situations, specifically providing that such special use properties can be valued based on a reproduction or replacement cost analysis (i.e., the cost of purchasing replacement land, making the land suitable for the same use, and the cost of ...

According to a San Diego Union Tribune article that was published over the weekend, the City of Encinitas has turned to the use of eminent domain to complete a $1.3 million drainage improvement project for an area impacted by flooding.  The article, "Encinitas to seize land for drainage work," reports that the city has reached a deal with six of the seven impacted property owners.  The hold-out property owner will face having a portion of its property condemned so the city can expand an already existing easement and install a drainage pipe under a horse trail. 

The hold-out ...

The City of Seal Beach announced that it is moving forward with plans that certainly do not sound controversial.  The City intends to improve a bike path, expand a park, and repave a parking lot.  But an adjacent property owner thinks the City's plans are infringing on its plans to develop its property.  Bay City Partners is currently involved in two related lawsuits with the City. 

The City filed a 2009 action to acquire 21,000 square feet of the property; the eminent domain trial is scheduled for October 2010.  Earlier this month, Bay City Partners sued the City, attacking its improvement ...

As we reported in an update yesterday, San Luis Obispo County adopted resolutions of necessity to condemn portions of three parcels needed for Nipomo’s Willow Road interchange project.  According to an April 21 Santa Maria Times article by April Charlton, "Board OKs use of eminent domain," the County is still negotiating with the owners, but was forced to start the eminent domain process now, or its risks losing key project funding:

[T]he county is required to show the state that the project is ready to proceed by the end of June to obtain millions of dollars in transportation funds ...

Over the past month, we have reported on a number of potential projects involving the use of eminent domain.  For anyone following these projects, here is a quick update:

• On March 19, we reported that the City of San Pablo was contemplating renewing the City's eminent domain powers for an additional 12 years while promising compliance with Proposition 99.  According to a Mercury News article, this week the City postponed reaching a decision on the renewal until at least May 3. 
• On March 24, we reported that the County of San Luis Obispo was contemplating authorizing eminent domain ...

According to a San Diego Union Tribune article,"City ready to acquire land to widen Plaza Boulevard," National City has adopted resolutions of necessity in order to use eminent domain for the widening of a 1.1-mile stretch of Plaza Boulevard.  37 properties are impacted, although the City has reached agreements with a majority of the property owners.

The expansion project will widen Plaza Boulevard from four to six lanes between Highland Avenue and Euclid Avenue, including a section under the 805 freeway.  The City says widening its busiest commercial corridor will ...

Recently, the State of Utah has been making eminent domain news as it seeks to condemn property from the federal government.  Now, one California County is looking at a less drastic means of gaining some control over federal property. 

On April 6, the San Benito County Board of Supervisors voted 4-0 to reopen 25 miles of previously closed County roads.  While deciding to reopen its own roads might normally garner little attention, this decision is interesting because the roads are located within land owned by the federal Bureau of Land Management.   The roads were closed in 2008 when the BLM ...

Over the years, the approval process for development projects in California has become more burdensome, more difficult, and more time consuming.  The project proponent -- whether a private developer or a public agency -- spends months, and usually years, addressing environmental issues, processing entitlements and, for bigger projects, often facing court challenges.  But what does this have to do with eminent domain?

Well, property owners and business owners typically become aware of potential government projects very early in the planning process.  And while the ...

According to a Pasadena Star-News article, "Pasadena may use eminent domain to seize historical building," next month the City of Pasadena will consider authorizing the use of eminent domain to acquire a historical building designed by California's first prominent female architect, Julia Morgan.  The building, located at 78 N. Marengo Ave. near City Hall, was built in 1921, making it one of the earliest historical structures in Pasadena.  Pasadena is apparently ready to turn to eminent domain because the historical site has been fenced up and abandoned for more than a decade.

So ...

According to a Santa Maria Times article, "Eminent domain decision delayed," the County of San Luis Obispo is currently in the process of acquiring property for the Nipomo's Willow Road Interchange project, which will extend Willow Road from Hetrick Road to Highway 101, and will also include constructing new onramps for access to Highway 101 from the extension.  While it appears the County has successfully negotiated the property acquisitions so far, the County may utilize its eminent domain powers to condemn other necessary properties.

One impacted property -- a ...

According to the Alameda Corridor-East Construction Authority's ("ACE") Spring Newsletter (which was published yesterday), ACE plans to start construction of three major grade separation projects this year.  The three projects include:

• The Baldwin Avenue grade separation project in El Monte, which involves creating a roadway underpass beneath the Union Pacific Railroad tracks at the Baldwin Avenue crossing;
• The Nogales Street grade separation project in the City of Industry, which involves lowering Nogales Street 20 feet below the railroad tracks; and
• The San Gabriel ...

We've previously reported on some of the major renewable energy projects currently underway, such as Southern California Edison's Tehachapi Renewable Energy Transmission Line Project and GE's plans to design the largest wind farm in the world.  After a major planning effort, it appears that another renewable energy project -- the Sunrise Powerlink project -- may be moving forward as well.  

According to a March 7 San Diego Union Tribune article by Onell Soto, the 123-mile, $1.88 billion Sunrise Powerlink project has obtained approval from the Public Utilities Commission ...

In February 2009, the city of American Canyon filed an eminent domain lawsuit in Napa County Superior Court to acquire vacant property on which the city intended to build two water storage tanks.  According to a Napa Valley Register article, "AmCan settles deal for water tank property," the city has now settled the lawsuit for $542,909.  In return, the city obtained 3.2 acres of unimproved land and an additional four acres for permanent and temporary easements.

It appears that the settlement was prompted by the court's recent ruling that the property owner was not entitled ...

The City of Placentia has a large redevelopment area, and ambitious plans to redevelop an industrial neighborhood in south Placentia.  But the City has responded to the outrage over eminent domain and, in particular, eminent domain for redevelopment purposes.  The City apparently has no power to condemn property for private redevelopment. 

Yet, this lack of authority has not stopped some property owners in the redevelopment area from complaining that the "threat" of eminent domain has decimated their property's value.  According to a February 17 Orange County Register article by ...

We reported back in October that the Long Beach City Council approved the use of eminent domain to acquire nearly 10,000 square feet of property to widen Pacific Coast Highway.  Now in February, the City Council is once again considering the issue.  So why, nearly four months later, is the issue back before the City Council?  According to a recent Costa Costa Times article, the reason is because the project description has changed.

Back in the "pre-Kelo" era, agencies would routinely proceed with planned eminent domain despite minor changes to the project description.  However ...

We have previously reported on Tulare County's efforts to acquire right of way for its Road 108 widening and its Road 80 widening.  Now, the County is considering condemning four additional parcels for the Road 108 project. 

In a February 1 article in the Visalia Times Delta, Eminent domain on county board's agenda, Valerie Gibbons reports that the County will decide tomorrow whether to file four more eminent domain actions, which would bring the recent total to 25.  Ms. Gibbons reports that the County's apparent rush to proceed has "had residents up in arms in past meetings."

But the County ...

For years, Cathedral City has been acquiring property by eminent domain as part of its 23-acre Eastside Downtown Area redevelopment plan, which seeks to redevelop downtown Cathedral City into a 39-unit commercial center.  Our firm has also been involved in the project for years, having assisted several property owners impacted by the redevelopment agency's plans. 

According to a January 26 Desert Sun article, "Cathedral City council votes to pay $535,000 in eminent domain land deal," Cathedral City recently approved a $535,000 settlement with one of the final remaining ...

In November, we reported that the Barstow City Council would be deciding whether to reinstate the redevelopment agency's power of eminent domain.  According to a January 20 Desert Dispatch article, "Eminent domain issue sparks fear among residents," the City Council has decided to table the issue until May. 

According to the article, the redevelopment agency sees its eminent domain power as a necessary tool to remove blight in the area northwest of Interstate 15 near the outlet malls.  But like most redevelopment efforts, the issue is drawing much public debate.

At the City ...

The public outcry over eminent domain continues.  Claims of "eminent domain abuse" fill today's popular media; a January 21 article by Steve Cook, Eminent Domain is Alive and Well, claims 2 in 3 Americans oppose eminent domain. 

What so often gets lost in the shuffle is that most of the outrage focuses on a narrow aspect of eminent domain:  redevelopment efforts that involve condemning private property and transferring it to another private owner.   This is what sparked debate in the Kelo case, and it is making major headlines in New York, where the "Atlantic Yards" drama involves ...

There was both good and bad news this month for San Francisco’s planned Central Subway Project.  Earlier in the month, the Federal Transit Administration issued its approval which permits San Francisco to begin the final design stage of its $1.6 billion subway which will ultimately link AT&T Park with Chinatown. 

To secure the necessary right-of-way, San Francisco's Department of Public Works recently notified 12 retailers along Stockton Street that their minor encroachment permits, authorizing them to occupy City-owned sub-sidewalk space, will be revoked. They ...

According to an Orange County Register article, "O.C. may force sale of property for tunnel," Orange County officials are considering the use of eminent domain to acquire 20 parking spaces from a Huntington Beach apartment complex.  The property is necessary for a storm drain project which tunnels under the I-405 freeway.  

The County's storm drain project is in response to a 1995 flood which required the evacuation of the apartment complex's ground-floor units.  The property owner has been offered $96,500 for the 7,200 square feet that make up the 22 parking spaces.  

The County's ...

The Alameda Corridor-East Construction Authority ("ACE") is working on a $75 million project to improve rail service in the San Gabriel Valley.  The project involves constructing a rail underpass on Baldwin Avenue in El Monte, and it is part of a larger, $1.1 billion project that includes 20 grade separations.   

ACE has acquired nearly all of the right of way for the Baldwin Avenue underpass, but one owner, Fred Jast, has not moved.  According to a recent San Gabriel Valley Tribune article by Rebecca Kimitch, "El Monte man fights eminent domain claim," Mr. Jast has been fighting with ACE for several years ...

San Bernardino currently has over a dozen overpass or underpass projects planned throughout the county.  Last month, officials had planned to move forward with condemnation proceedings for one such project, the $20 million Hunts Lane overpass located at the Colton-San Bernardino city line. 

But according to a Riverside Press-Enterprise article, "Hunts Lane overpass causes some concern," nearby property owners voiced concern over the railroad grade separation project's impacts to their businesses, such as blocking access and destroying visibility.  As a ...

The City of Rosemead has a vision of its future that transforms the city into "a small town in the heart of a metropolis."  That, according to San Gabriel Valley Tribune reporter Rebecca Kimitch, is the goal of the city's new strategic plan.  Ms. Kimitch's article, "Rosemead defines itself as small town in the big city," explains:

The to-do list is ambitious: landscape medians and plant trees along sidewalks; demolish dilapidated vacant buildings; develop new neighborhood parks; remove graffiti; expand community classes and develop a community computer lab; create a civic center at ...

Earlier this year, Nossaman sent out an E-Alert providing a status update on the use of federal stimulus dollars for California infrastructure projects.  Here on the blog, we've also recently reported on water-related property rights issues grabbing news headlines.  A recent Mojave Water Agency project -- backed by federal stimulus dollars -- ties the two topics together.   

According to a recent Victorville Daily Press article, "MWA uses eminent domain on land: Property is needed for R-Cubed project," the Mojave Water Agency is using eminent domain to acquire land ...

This week the Orange County Register reported in an article titled "Transportation agency to spend millions saving habitat" that the Orange County Transportation Commission is "beginning quietly" with what could be "one of the largest habitat preservation efforts in county history" by which the OCTA may acquire millions of dollars of land to protect native landscape.

The article states:

The preservation push [is] meant as a hedge against possible habitat damage from a 30-year, $4.8 billion freeway improvement project the agency is planning.

According to the article, the ...

One of the big eminent domain stories of the last few weeks involved the oral argument at the U.S. Supreme Court in the Florida beach case.  That case involves whether a government program to add sand to parts of the Florida coastline, creating new public beaches in front of private property that had been beach front constitutes a taking.  For more information about that case, see my December 15 article, "Erosion Control, or Coney Island South?" published in the Los Angeles Daily Journal. 

Now, two other water-related takings issues are making news.  The first, as reported December 14 by ...

We've previously reported on the increase in renewable energy projects in California, such as Southern California Edison's ("SCE") Tehachapi Renewable Transmission Project.  When it comes to wind farms, General Electric now takes the cake:  it has brokered a $1.4 billion contract to supply wind turbines and services for a wind farm that would be larger than any wind farm currently in operation in the world.

According to a December 10 Bloomberg article GE Wins $1.4 Billion Order for Oregon Wind Farm, the 338-turbine wind farm will stretch across 30 square miles in ...

Everyone knows the sad tale of America's automotive industry:  companies operating only through government subsidies and dealerships shutting their doors across the country.  So when the City of Vista came up with a plan to "create a second downtown car dealership and boost sales tax revenue," one would think the public would embrace it. 

But like many bold plans, this one has a wrinkle.  While most of the property needed to facilitate the plan is available for purchase, including the existing North County Ford site, one additional parcel is needed.  

According to North County Times ...

Perhaps the most talked-about California eminent domain case in 2009 has been the City of Stockton v. Marina Towers decision, in which the Court struck down the City's right to take property where the resolution of necessity contained no real public purpose (not surprising, since the City did not know at the time it filed the action what it would do with the property).   The case's tag-line usually played out like this:  the "project" was the condemnation itself, which does not qualify as a public purpose.   

This holding was itself somewhat interesting, as California law ...

The City of Claremont voted 4-1 to extend its redevelopment agency's eminent domain authority for another 12 years.  In a November 29 Inland Valley Daily Bulletin article, Claremont renews its eminent domain power, reporter Wes Woods, II writes that the the City's redevelopment agency amended its redevelopment plan to prevent its eminent domain authority from lapsing in December. 

The use of eminent domain is often controversial, but especially so when it is for redevelopment purposes.  And, when redevelopment requires condemnation of residential property, the public tends to ...

The City of Visalia's road widening project at the Mooney Boulevard and Walnut Avenue intersection depends on the acquisition of a strip of private property necessary to relocate power poles.  According to the Visalia Times-Delta article, "Power poles, land acquisition trip up Visalia's plans for transforming Mooney/Walnut intersection," the necessary strip of land belongs to the owners of the Peachtree Shopping Center.  Those owners do not want the power poles on their property, and Visalia's City Council has therefore approved the use of eminent domain.

According to the owners ...

With recreational travelers bound for Las Vegas and Laughlin combining with commuter traffic and freight movement, the junction of Interstate 15 and Interstate 215, known as the Devore interchange, likely qualifies as the the worst bottleneck on the I-15 in San Bernardino County.

And as Dug Begley reports today in a Press-Enterprise article titled Devore Interchange Discussed Today, the San Bernardino Association of Governments in planning to do something about it:

The interchange, a well-known bottleneck near where traffic enters and exits the Cajon Pass to the High Desert, is ...

Last night, the Riverside City Council approved the use of eminent domain to acquire the land necessary for the Five Points intersection project.  The project includes widening La Sierra and Hole avenues and Pierce Street, adding left turn lanes, and closing Bushnell Avenue off as a cul-de-sac at La Sierra.

According to the Press Enterprise article, "Riverside to spend $5 million on Five Points parcels," the City expects the acquisition to cost $5.4 million in order to compensate 15 property owners for land, furniture, and equipment.  Three landowners have reached deals, while the ...

The City of Corona has announced plans to extend its eminent domain authority in a downtown area which Corona feels is blighted.  The planned extension could impact businesses in the area, but Corona is carving out residential properties.  According to Riverside Press-Enterprise reporter Leslie Parrilla, in her November 16 article, "Public hearing on eminent domain area":

Hundreds of businesses are in the Main and Sixth Street area covered by the action. Not included would be residential properties within the Merged Redevelopment Project Areas.

Corona's current plans do not ...

With the completion of the I-5 widening project in Orange County north to the Orange County-Los Angeles County line, motorists cruised along the new, spacious lanes until they hit the County line, at which point an abrupt bottleneck brought them to a halt.  Now, the I-5 widening has commenced again, as the project moves north into Los Angeles. 

Across the county, the other major freeway connecting Orange and Los Angeles Counties, Interstate 405, could face a similar future.  The Orange County Transporation Authority has plans to widen the 405 freeway north from the 73 freeway to the ...

In 2006, what seemed to be a simple real estate transaction occurred:  the Jurupa Community Services District sold 4.3 acres of property it didn't need to Stadium Properties, which planned to re-zone the property and develop it with a mini-storage facility. 

The problem was that the Community Services Distrcit sold the property without first offering it to other public agencies, a requirement under California law (Government Code section 54222).  More problematic was that the Jurupa Area Recreation and Park District had purportedly been expressing interest in the property for ...

Just a few weeks ago, we reported on Tulare County's plans to condemn a number of properties to facilitate the widening of Road 80.  Now, Visalia Times-Delta reporter Valerie Gibbons reports that Tulare County is considereing condemnation for four additional parcels, this time to facilitate the widening of Road 108 (or Demaree Street) between Visalia and Tulare. 

The November 11 article, "Board of Supervisors moves to seize land for Road 108 project while still in property negotiations," explains that both the Road 80 and Road 108 projects raise the same concerns from property ...

As mentioned in the Whittier Daily News article from last week, "Two property owners protest La Mirada plans for Valley View underpass at BNSF Railroad," the City of La Mirada and the City of Santa Fe Springs have moved forward with filing condemnation actions to acquire the necessary property for the Valley View Grade Separation Project.  The project will result in an underpass at the BNSF Railroad crossing.

The City of Santa Fe Springs' November 9 City Council Agenda discusses the adoption of a resolution of necessity for each of the necessary acquisitions.  It appears a few ...

Today, I attended the IRWA Chapter 67 monthly lunch meeting.   The speaker was Philip Law, Corridors Program Manager for the Southern California Association of Governments (SCAG).  He came to discuss SCAG's 2008 Regional Transportation Plan.  The plan is intended to coordinate efforts to implement transportation improvements through Southern California.  It involves a $531.5 billion, 25-year long range plan of needed improvements.

The Plan's Executive Summary [PDF] describes in detail the various plan components, including ...

Government agencies often require developers of large projects to build the necessary infrastructure to accommodate those proposed projects.  Examples include building a new roadway to reach the project, widening an existing roadway due to the project's adding extra trips to the daily traffic, and installing improvements for utilities and flood control, among other things.  But how do developers acquire the right-of-way when the necessary property is privately owned? 

The proposed Merriam Mountains residential development project in north Escondido is a ...

The impetus for one of the most infamous eminent domain cases in U.S. history was the City of New London, Connecticut's efforts to utilize a massive Pfizer plant as the basis to revitalize the surrounding area.   (The common myth that Pfizer was itself the intended beneficiary of the Kelo property is not correct.) 

The decision, Kelo v. City of New London, triggered a nationwide backlash against eminent domain when the Supreme Court ruled that economic growth, by itself, qualifies as a public purpose sufficient to satisy the right to take property by eminent domain.

The tale of what ...

On Tuesday, the City of Lake Forest voted unanimously to move forward with plans to condemn a 6.11-acre parcel to use as a land swap with the County of Orange.  The property will likely end up being incorporated into Whiting Ranch Wilderness Park. 

According to Orange County Register reporter Erika I. Ritchie, in her November 4 article "City moves forward with seizure of family's land," the property's owner, the Hernandez family, has resisted all efforts by the City to acquire the property voluntarily.   But the City needs the property to complete a land swap with the County that will ...

One of the oddities of California's public utility system is that private companies own and operate many of them, yet they behave very much like governmental entities, especially when it comes to eminent domain.  Major examples include Southern California Edison and Pacific Gas & Electric ("PG&E"); both are private companies functioning as public utilities, delivering electricity to their constituents, and both are overseen by the Public Utilities Commission. 

Occasionally, an actual governmental entity will seek to replace the private utility company.  Such is the case ...

When LifeChoices sought to expand its rehabilitation center in 2002, the City of San Jose rejected the proposal, citing its plans for a future Berryessa Bay Area Rapid Transit ("BART") station, which would require freeway interchange improvements on the property.  According to John Woolfolk's October 23 Mercury News article, "San Jose to pay $2 million to acquire parcel and settle lawsuit," five years later LifeChoices' owner, John Licking, filed suit, challenging the City of San Jose's denial as constituting discrimination against the disabled.

Now, San Jose has agreed to pay ...