California Eminent Domain Report : a blog following condemnation, inverse condemnation, and regulatory takings written by attorneys with Nossaman LLP.

Last week, we sent out a blog post with a number of quick updates on right-of-way-related issues making headlines across California.  Rick thought it would be a cool idea if we made this type of post a weekly habit, so here it goes (and, if it doesn't work or happen every week, obviously blame Rick):

• City of Visalia Can't Negotiate With Property Owner:  Here's an interesting story.  According to an article in the Visalia-Delta Times, "Visalia moves to take land near St. Johns," the City of Visalia is using eminent domain to acquire property necessary for a walking trail.  So what makes the story interesting?  The property is apparently owned by a governmental agency -- the Tulare County Levee District One -- whose managing agency has been inactive since 2005.  As a result, the City has no one to negotiate with to acquire the property, and therefore intends to serve the condemnation complaint by publication and thereafter acquire the property by default judgment.
• ALI-ABA Conference This Weekend:  For those of you who are eminent domain practitioners, just a reminder that the ALI-ABA Annual Eminent Domain Conference will be taking place this Thursday through Saturday in San Diego.  I know my colleague Rick Rayl will be attending, and our friend Robert Thomas from Hawaii will also be presenting.  Check out his blog, www.inversecondemnation.com, for more details on the conference.
• Updated Appraisal Institute Book for Appraising Convenience Stores:  For our appraiser friends, just a quick note that the Appraisal Institute has finalized its second edition of the treatise, “Convenience Stores and Retail Fuel Properties: Essential Appraisal Issues.”  There's a significant focus on gas station properties, so if you have or anticipate assignments involving these issues, be sure to grab yourself a copy from the Appraisal Institute. 

If you like this type of weekly, short-story update, let us know.  We'll continue to provide more substantive posts on important topics, but if this type of update seems to go over well, stay tuned for similar weekly updates.

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The Appraisal Institute and Chapter 1 of the IRWA are holding their annual joint meeting on March 23.  It is being held at Steven's Steakhouse in Commerce.  Here are the details:

Steven's Steak House 
5332 Stevens Place 
Commerce, CA 90040
March 23, 2010
11:30 - Registration & Check-in
12:00 - Lunch & Presentation

The speaker will be Greg Angelo, Director of Real Property Management & Development at Los Angeles County MTA (Metro).   Mr. Angelo will talk about current Metro projects, including Expo Corridor Phase 1, Orange Line to Chatsworth, and I-405 Sepulveda Pass.  He will also talk about projects currently in the works, including ExpressLanes, Corridor Studies and Transit Improvement. 

It should be an interesting program, and the joint event always draws a good crowd.  Registration is still available. 

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On January 21, the Southern California Chapter of the Appraisal Institute is holding its 17th Annual Los Angeles/Orange County Market Trends Seminar.  The panel looks quite good, and the event is being chaired by Orell Anderson, MAI, Steve Valdez, Michael Kearns & Tyler Baird.  They report having only a few seats left, so act quickly if you want to attend. 

The seminar runs from 8:00 a.m. to 5:00 p.m., and is being held at:

Cerritos Sheraton Hotel
12725 Center Court Drive
Cerritos, CA 90703
(562) 809-1500

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Yesterday, I spoke at the Appraisal Institute's 42nd Annual Litigation Seminar.  As usual, it was a great event, well attended by many of the top eminent domain appraisers in Southern California.  I spoke about recent developments in a presentation entitled "Eminent Domain: Where Are We, and Where Have We Been?"  [PDF] 

While I am confident that anyone in attendance would tell you I was brilliant, I want to focus today on some issues that arose in Ted Whitmer's presentation entitled Legal Instructions, Litigation & Appraisal Institute Standards.  Ted's firm, Appraiser Defense, focuses on defending appraisers when complaints are made against them, and he provided some great insights into how appraisers should deal with the (apparent) conflicts between legal instructions and USPAP requirements.

Ted's fundamental premise (which I wholeheartedly endorse) is that whenever a conversation starts with "you'll never guess what this crazy attorney asked me to do," the answer is almost always, "so why didn't you do it."  Litigation is not the real world, and appraisers are often asked to make assumptions about things that defy logic, or that simply don't reflect what the appraiser would do in an appraisal assignment absent such an instruction.  The "litigation reality," however, changes an appraiser's normal practice. 

Sometimes, an attorney has a legal theory (about a purportedly comparable sale, about highest and best use, about severance damages, etc.) that he or she is hoping to convince the court is correct.  That legal theory may depend on the appraiser's making certain assumptions that do not exist in the real world. 

Other times, the attorney is giving an instruction because of a ruling the court has already made in the case.  Judges can make bizarre and inexplicable rulings, and when the court rejects what seems to be the most obvious comparable sale, the appraiser must disregard that sale, or his or her opinion will be thrown out of court. 

Ted also explained (in detail and with more eloquence than I could ever muster) how following such instructions need not violate the appraiser's ethical obligations under USPAP.   One key appears in Rule 1-2(g) concerning Hypothetical Conditions, which allows use of a condition where "clearly required for legal purposes." 

If I can get Ted to allow me to link to his presentation, I will.  In the meantime, for a little more information on legal instructions and their interaction with USPAP, here is a portion of a presentation I gave to the Appraisal Institute this past spring on the issue. 

UPDATE, NOVEMBER 24:  I heard back from Ted, and he graciously provided me with a copy of his PowerPoint, Legal Instructions:  Litigation, USPAP & Appraisal Institute Standards to share.  He also suggested that appraisers may want to take a look at his article, Stay out of Trouble. 

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On November 18, the Southern California Chapter of the Appraisal Institute is hosting its 42nd Annual Litigation Seminar.  This full-day event features a great panel of speakers, and has been approved for eight hours of both Appraisal Institute and Office of Real Estate Appraisers ("OREA") continuing education credit. 

It is being held at:

Embassy Suites Hotel
11767 Harbor Blvd.
Garden Grove, CA 92840 
714-539-3300

I will be speaking at 3:45 p.m. on "New Cases & What’s Happening in Eminent Domain."  I understand that I am the last speaker of the day, and that you will undoubtedly have heard all you want to hear about eminent domain by the time 3:45 rolls around, but if you come, please stick around for my presentation.  I hate speaking to an empty room. 

I'd preview what I plan to say, but it will probably depend a lot on what happens earlier in the day, and besides, if I told you now, there would really be no incentive to stay until the end of the day with me.  Hope to see you there!

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