COVID-19, Outdoor Dining, Street Closures and Takings?

As the world continues to grapple with the devastating impacts from COVID-19, local government agencies are finding ways to help local businesses survive while still complying with the complex maze of regulatory requirements. As just one example, many cities and counties are permitting restaurants and other businesses to offer outdoor dining and other services, including granting permits to operate on the public sidewalk or in streets. However, in some cases, while those outdoor operations may benefit some businesses, other businesses are complaining about the resulting ...

Top 10 Issues Affecting Real Estate

Each year, the Counselors of Real Estate organization polls its members and thereafter releases a summary of the “Top 10 Issues Affecting Real Estate.” You can find the article here

As expected, COVID-19 dominated the headlines and ranked number 1 on the list of issues. Aside from the personal, emotional, and economic toll, COVID-19 raises serious questions about the future demand for real estate, and whether it will be reduced by the “virtual office” and preference for home entertainment? There is a huge question mark regarding how long social distancing will persist, and ...

Who Has The Right To Develop A Pier? 

If you know someone with property that borders, is adjacent to, or abuts a natural lake, pond, bay, sea, or ocean, they may have littoral property rights. What that means is they may have the right to build a pier out to the line of navigability, a right to navigation, a right to accretion, and a right of access. I say “may” because these rights can be qualified rights, or simply nonexistent. Furthermore, determining whether such rights exist and, if you are lucky enough to have them, their extent can be a complicated endeavor. Then again, sometimes the analysis can be quite simple, such ...

Posted in Appraisal, Valuation
Top 10 Considerations When Retaining an Appraiser for Eminent Domain

When a public agency is acquiring private property for a public project, typically the key issue in dispute is how much the agency should pay -- what is “just compensation”? Determining the property’s value and any damages from the acquisition or public project is usually based on appraisals prepared for the public agency and property owner. A recent article written by Lauren Alexander, on behalf of the Owners' Counsel of America (a network of experienced eminent domain attorneys dedicated to defending the rights of private property owners across the US), highlights the top 10 ...

Government’s Enforcement of Development Plan Conditions is Not a Taking

When a property owner commits to developing property in a certain manner, including providing a certain number of parking spaces, and the local government agency enforces the owner’s failure to comply, does the enforcement result in a taking? As expected, the answer is no -- there is no taking. This was the outcome of a recent court of appeal decision, 3558 Sagunto St. v. County of Santa Barbara (2020 Cal. App. Unpub. LEXIS 5328).

Background

In 3558 Sagunto St., a property owner owned two adjacent parcels, and submitted a development plan which designated a certain number of parking ...

There Can Be No Taking for Impairment of Access If the Property Does Not Abut a Public Road

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 ...

COVID-19 Update: Courts Rule Limitations on Evictions Not a Taking

In response to the COVID-19 pandemic a number of local jurisdictions throughout the country adopted ordinances freezing rents and prohibiting or limiting evictions. Not surprisingly, some landlords were not particularly pleased with these enactments, as they saw their properties occupied without the associated rental stream and still all the related carrying costs. In response, lawsuits were filed in federal and state court alleging that these enactments violated the federal and state constitution, including the takings clause. However, so far these arguments don’t ...

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Court Reminds Public Agency it Must Put Condemned Property to Public Use Within 10 Years

After adopting a resolution of necessity and initiating eminent domain proceedings to acquire private property, public agencies are usually in a rush to move forward with the proposed public project.  But every once in a while, those projects get delayed or postponed.  A recent court of appeal decision, Rutgard v. City of Los Angeles (2020) Cal.App. LEXIS 709, serves as an important reminder for public agencies that they must put the property to public use within 10 years or otherwise timely adopt a new resolution of necessity.  Absent doing so, the public agency has an obligation to offer ...

California Supreme Court Determines That Legal Issues Motions Cannot Be Made in Inverse Condemnation Actions

It is Christmas in July for eminent domain practitioners! We have a California Supreme Court opinion on a condemnation case, which is rare. The case, Weiss v. People ex rel. Department of Transportation (2020 Cal. LEXIS 4357), is an inverse condemnation action where the main question is this: Can you make a Code of Civil Procedure Section 1260.040 motion, also known as a Legal Issues Motion, in an inverse condemnation action? According to the Supreme Court, the answer is no, these motions are meant to address valuation issues in eminent domain actions -- not determine liability in an ...

Temporary Construction Easement Expirations During the COVID-19 Pandemic

During Nossaman's recent webinar concerning Transit & Transportation Project Success in the Wake of the Pandemic, I addressed Temporary Construction Easement (TCE) issues. For a re-cap of my presentation on this topic please click here.

Additionally, to view our entire webinar "A Path to Transit & Transportation Project Success in the Wake of the Pandemic: A Panel Discussion Among Legal Professionals," please click here to access the full on-demand recording.

We continue to monitor developments related to COVID-19 and are available to respond to questions and discuss issues ...

California Eminent Domain Report is a one-stop resource for everything new and noteworthy in eminent domain in California. We cover all aspects of eminent domain in California, including condemnation, inverse condemnation, and regulatory takings. We also keep track of current cases, project announcements, budget issues, legislative reform efforts, and report on all major California eminent domain conferences and seminars.

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