Eminent Domain Report

We routinely get calls from owners facing impacts to their property or business as a result of construction of a public project or changes in adjacent public streets. For example, the city or county may close a road, create a cul-de-sac, turn a two-way street into a one-way street, close a driveway, relocate an off-ramp, or change a road’s elevation. When there is no physical taking of property, do these public improvements trigger a taking entitling an owner to compensation? It is a tricky, heavily fact-intensive inquiry, but generally, the analysis centers around whether the property owner experiences a “substantial impairment of access.” A recent court of appeal decision, Martis Camp Community Association v. County of Placer (2020 Cal.App. LEXIS 773), details the requisite analysis for abandoning a public street, and also highlights a preliminary requirement for a taking: the property must abut a public road.

Background

Martis Camp involved the County’s abandonment of a public road that connected two residential subdivisions in the Tahoe area. The road was originally planned to be used for emergency access and public transit vehicles only, but over time, the owners of homes in one of the residential subdivisions began using the road as a shortcut. As a result of the unintended use, the County abandoned the road. The homeowners’ association sued, claiming that the County could not abandon the road, and any abandonment resulted in a taking. The trial court sided with the County, holding that the abandonment was supported, and there was no taking.

The homeowners’ association appealed, asserting that (i) the County could not abandon the road since it was being used by the public, and (ii) any abandonment substantially impaired the association’s abutter’s rights of access, thereby resulting in a taking.

The County Properly Abandoned the Road

With respect to the road abandonment, the Court of Appeal explained that in order to abandon a public road, the government agency must find that the road is “unnecessary for present or prospective public use” and the abandonment must be “in the public interest.” (Sts. & Hy. Code, sec. 8324(b).) Here, the County’s abandonment was supported by evidence showing the road was not intended to be part of the public transportation network; the unauthorized use of a road for “convenience” does not preclude its abandonment. The Court further concluded that despite its abandonment, the County could still reserve an easement in the road area for public transit and emergency services. Reservation of certain public easements, such as for public utility services and public trails, is expressly permitted by statute. (See Sts. & Hy. Code, sec. 8340.)

The Residential Subdivision Did Not Lose Abutter’s Rights

With respect to the inverse condemnation claim, the Court of Appeal explained that the owner of property abutting a public street has a property right in the nature of a private easement in the street upon which the property abuts. The easement consists of the right to access the street and from there, in a reasonable manner, the general system of public streets. This right cannot be taken or damaged for a public purpose without the payment of just compensation; if the right of access is substantially impaired by the closing or abandonment of a roadway, the owner is entitled to compensation.

Here, the homeowners’ association conceded that none of the lots directly abut the road that was abandoned. Nevertheless, the owners claim to have abutter’s rights because they were granted a non-exclusive easement for ingress and egress over all the subdivision’s roads. The Court of Appeal concluded that as non-abutting property owners, the association cannot allege a compensable taking because the property does not directly abut the road. “A non-abutting property owner does not have any special right to damages merely because access to a conveniently located street has been denied.” The owners’ non-exclusive easement to use the subdivision’s streets was not interfered with.

Conclusion

The case provides a good example of the steps and findings that must be undertaken before abandoning a public street, and the broad authorization granted to a local jurisdiction to reserve easement rights in a road or street that is abandoned. The case also highlights a preliminary requirement that must be satisfied before undertaking a substantial impairment of access inquiry: the property in question must abut a public street in order for there to be a taking.