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

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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According to Visalia Times Delta reporter Valerie Gibbons, in her October 20 article "Tulare County now wants 11 more parcels on Road 80," Tulare County is moving forward with condemnation plans for 11 properties in order to widen Road 80:

The county has been trying to acquire properties — many of which are in 40- to-60-foot-wide strips, and about a mile in length — since the beginning of 2008. Eighty-five other property owners along the route have reached sale-price settlements.

The widening project, designed to ease congestion between Dinuba and Visalia, has been planned for years.  According to Sarah Jimenez of the Fresno Bee, funds for right-of-way acquisitions were secured in 2006.  Regardless of the traffic problems the project is designed to alleviate, the County's decision to use eminent domain to acquire the final few properties along the right-of-way, is generating considerable controversy.      

According to an October 22 article in the Porterville Recorder,"11 more parcels grabbed for Road 80 project," the County is not taking the decision to use eminent domain lightly:

“It’s a difficult decision to make, but the necessity is there,” Supervisor, Dist. 2, Pete Vander Poel said.

County staff argued that without these parcels the Road 80 Project would be incomplete. The undertaking consists of widening Road 80 from two lanes to four lanes and creating a dividing center median from Goshen Avenue in Visalia to Avenue 416 in Dinuba that will improve traffic flow, alleviate flooding and improve access to Dinuba.

Based on the recent articles, it appears the disputes center not on the need for the project, whether the County should acquire it, or what the County is wiling to pay for the land it is acquiring.  Instead, it appears that owners are concerned largely with severance damages and loss of business goodwill that they believe the project will cause.  Of particular concern to some dairy farmers is that the loss of land will purportedly impact the number of cattle they may have on their remaining property, based on restrictions imposed by state waste-water treatment regulations.

It appears from its published Agenda for its October 27 meeting [PDF] that Tulare County may decide then whether it will expand the scope of the takings to include additional parcels (Ms. Gibbons' article indicates that three additional parcels are being considered).   

Notably, even as it moves towards filing condemnation actions, the County intends to continue negotiations to acquire the properties voluntarily.  In fact, the County reports that it recently began negotiating directly with the remaining owners in response to complaints that the relocation consultants the County hired were not adequately reponding to owners' concerns. 

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