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

Few property owners look forward with any enthusiasm to the date the government finally announces it is moving forward with plans to condemn their property.   But owners who pretend that day will never actually arrive often realize too late that they have missed opportunities to protect their investments.

Eminent domain often proceeds over a very long time-table.  From project conception to right of way acquisition, years may pass, with properties held up in a cruel limbo as owners wait to see if the project really happens, and if so, whether their property will ultimately be impacted. 

In Tulare County, farmers are taking a proactive approach, organizing themselves and becoming educated about the eminent domain process and what they can do to protect themselves. 

According to an October 20 California Farm Bureau Federation article by Christine Souza, For farmers facing eminent domain, preparation pays, local farmers are especially concerned with impacts from the upcoming San Joaquin Cross Valley Loop Transmission project, which California's Public Utilities Commission approved in July.  

Last week, the Farm Bureau held a seminar about the process:

“As with anything you do, it’s really important for you to be aware of the rules and parameters, because knowledge empowers you,” [California Farm Bureau Federation associate counsel Karen Norene] Mills said. “We held the program to provide basic information prior to the acquisition process, because Edison is a big company and has significant resources.”

This is great advice.  While most of the time, private owners cannot stop eminent domain from happening, there are many ways in which they can secure higher compensation for the taking.  While some of the steps are relatively straight-forward, an attorney trained in eminent domain can make all the difference. 

So, if you are facing eminent domain, consider talking to an eminent domain attorney.  Even if the acquisition is far in the future, there are things you can and should be doing now to protect yourself. 

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According to an article in this week's New York Times, "Solar Power Plants to Rise on U.S. Land," the United States has approved two large solar power plants to be built on federal lands.  This is the first time such large plants will be built on federal land, and both are slated for California. 

The first plant is proposed by Tessera Solar and will be built on 6,360 acres in the Imperial Valley.  The second plant is proposed by Chevron Energy and will be built on 422 acres in the Lucerne Valley.  When completed, the two projects could generate enough energy to power as many as 566,000 homes.

Aside from these two projects, several others are expected to be approved this year as well; Interior Secretary Ken Salazar is quoted as saying: “It’s our expectation we will see thousands of megawatts of solar energy sprouting on public lands.”

The major hurdle, however, appears to be finding excess capacity on transmission lines in the desert, most of which already operate at or near capacity.  Perhaps there may be some capacity on Southern California Edison's new Tehachapi project, which we've reported on multiple times in the past.  Otherwise, energy companies may be faced with constructing new lines, like San Diego Gas & Electric's 123-mile Sunrise Powerlink project.  If additional transmission powerlines are necessary, eminent domain may well follow.

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In May, we reported on the City of Chino Hills' efforts to stop a portion of Southern California Edison's Tehachapi Transmission Project.  The project involves 175 miles of transmission line right of way designed to serve wind farm development in the Tehachapi area. 

Much of the right of way for the transmission lines runs through remote, undeveloped areas.  Though there have been many disputes over the amount of money SCE must pay to acquire any new right of way it needs (much of the project runs along pre-existing right of way), there has been little dispute about SCE's right to build the project.

The notable exception involves "Segment 8a," which runs through the Chino Hills area.  Though SCE already has transmission lines in the area, the project calls for replacing existing 220 kV lines with much larger 500 kV lines.  Officials in Chino Hills argue the higher-capacity lines are not safe, claiming that no precedence exists for placing such lines in populated areas. 

Earlier this month, the court denied the City's request for an injunction to stop construction while its appeal of an earlier decision proceeds.  The ruling allows SCE to start construction, and SCE is wasting little time in moving the project forward. 

Following the favorable court ruling, SCE promptly issued a Notice of Construction, announcing that construction will commence October 9, 2010, and will last through December 2011. 

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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 and the Bureau of Federal Land Management, but is still waiting approval from the U.S. Forest Service.  The project is also facing challenges by the County of San Diego. 

Despite those challenges, property acquisitions for the project have commenced.  In addition to several voluntary acquisitions, eminent domain actions to acquire some of the necessary property for the transmission line right-of-way are underway.  (For those wondering, private utility companies typically have the power of eminent domain for public projects.)  Filing the eminent domain actions now is likely necessary in order to obtain possession of the impacted properties in order to meet the project's construction timeline (construction is scheduled to begin this summer).

The eminent domain process is necessary when a condemning agency and the property owner cannot agree on an acquisition price.  For projects like the Sunrise Powerlink project, disputes over "fair market value" typically involve how the high-voltage transmission lines will impact the remainder of the owner's property, not necessarily the value of the right of way being acquired.  

In some instances, a power line's transversing a parcel arguably leaves the remaing property with no remaining economic value, generating significant "severance damages."  Not surprisingly, cases involving such severance damages often involve a wide range of opinions among eminent domain attorneys and appraisers.  

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