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

I will be speaking February 11 at the Sacramento IRWA Chapter's lunch meeting (Chapter 27).  My presentation will be about avoiding pitfalls under the new eminent domain prejudgment possession rules.   This topic has received considerable attention over the past couple of years, and will undoubtedly be the focus of more attention over the next few years as appellate decisions involving the new rules start to appear.  

The meeting details are as follows:

La Provence
110 Diamond Creek Place
Roseville, CA 95747
(916) 789-2002
Board Meeting: 10:30 a.m.
Registration/ Meet & Greet: 11:30 a.m. - 12:00 p.m.
Luncheon: 12:00- 1:00 p.m.

The cost is $20 per person if you RSVP, or $25 per person at the door.  You can RSVP to Vanessa Cothran at vcothran@ufsrw.com.

One thought for now (since it has come up in several discussions and contexts in the past week):  While the new rules are clearly designed to benefit property and business owners, both by extending the time for an agency to obtain possession and by creating a balance that gives the owner a chance to defeat possession upon a showing of greater hardship than the agency will suffer if denied possession, the rules may also be having an unintended negative impact on some owners. 

Agencies are always trying to find ways to get projects built within narrow time frames and budgets.  And, funding sources often tie receipt of the funds to being "shovel ready" -- or at least having possession of the property.  With the new possession time lines, agencies can now find themselves in a position where they need to file eminent domain actions earlier than they might prefer, just to preserve project funding. 

This may compress the negotiation periods and force owners to hire lawyers even in cases in which an early, negotiated solution might otherwise have been possible.  And, unless the funding sources are willing to change the requirements necessary to secure funding, this problem is likely to continue. 

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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 may have good reason for proceeding quickly, and it likely isn't because the traffic is so bad that the County cannot wait another 90 days to negotiate and, hopefully, appease angry residents.  The problem lies in the combination of the post-Kelo changes to California's prejudgment possession rules and the requirement that federal stimulus dollars be applied to "shovel ready" projects.  This combination squeezes the County's time line, requiring that it file the eminent domain lawsuits quickly or risk losing critical stimulus-dollars funding.  As Ms. Gibbons explains:

Planners say they must move forward quickly, otherwise the funding will be jeopardized. Rules for stimulus-funded projects require the proposal be "shovel ready" before the money is approved and it must be used within a certain length of time.

Back when agencies could acquire possession on short notice (occasionally, as little as three days), the "shovel ready" requirement would be challenging enough, but with possession now taking six to eight months -- or more -- the push to proceed quickly is exacerbated.  

In other words, one of the unintended side effects of the new possession rules (designed to protect property and business owners) is that agencies sometimes must proceed faster than they probably should, thereby harming property owners by forcing owners into litigation even in situations in which a reasonable negotiation period is likely to yield a settlement.  

This problem can be solved, but the solution is not returning to the old, "immediate possession" days.  Rather, funding sources should recognize the changes in the law, and should tie the date upon which the funding is secured to something other than possession and being "shovel ready." 

For now, however, agencies are stuck either pushing ahead regardless of community opposition or risking the very funding that makes the project possible.  My guess is that in Tulare County, residents will show up tomorrow to express outrage over the fact that the County has not completed good faith negotiations and should not condemn now -- and that the County will vote to proceed anyway to protect its funding. 

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