Posts from 2020
Does the Coronavirus Shutdown Trigger a Regulatory Taking?

With the recent government mandates surrounding COVID-19, many businesses are completely shut down and are legally unable to open their doors to the public.  Are those businesses -- movie theaters, gyms, retail stores, etc. -- entitled to compensation for a regulatory taking?  Similarly, landlords are experiencing massive losses as those tenants are unable to make rental payments; are those losses compensable?  Should governments worry about liability when issuing orders requiring the closure of businesses? 

While compensation arguably should be paid from a decency and “good ...

Posted in Right of Way
Navigating COVID-19 for the Right of Way Industry

COVID-19 has undoubtedly upended the world, including the way we do business and the future of our economy. We have received a number of questions and concerns from clients in the right of way industry on how the current pandemic affects the way we do business, and what to expect going forward. Please read on for links to helpful resources...

“Public Improvement” Narrowly Defined to Limit Inverse Condemnation Liability

Since the California Supreme Court’s 2019 Oroville decision, which narrowed inverse condemnation liability for public agencies, several court decisions have followed suit.  This week, the California Court of Appeal issued an unpublished decision in Ruiz v. County of San Diego (2020 Cal. App. Unpub. LEXIS 1769), which further clarified and limited what constitutes a “public improvement” for purposes of inverse liability ...

Governor’s Use of Emergency Power to Commandeer Property Requires Payment of “Reasonable Value”

As COVID-19 spreads throughout the globe and the United States, our national, state and local governments are taking wide-reaching but necessary actions to respond to this novel coronavirus.

On March 4, 2020, Governor Gavin Newsom declared a State of Emergency and on March 12 issued Executive Order N-25-20, which, in part, allows the California Health and Human Services Agency and the Offices of Emergency Services to enter into contracts or, if agreements cannot be reached, “commandeer” property, such as hotels, medical facilities and other facilities that are needed “for ...

Court Clarifies Inverse Condemnation Liability

While inverse condemnation liability in California originates from the California Constitution, determining when it applies -- and under what circumstances -- is based on a lengthy morass of case law that has been described by one court as “seemingly inconsistent and irreconcilable.”  If you’re interested in learning more about the subject ...

Is California Coming for Your Beach House?

Yes, but the sea might beat them to it. In 2015, the California Coastal Commission adopted the Sea Level Rise Policy Guidance. This Guidance document discusses a number of potential measures for responding to sea level rise, including "managed retreat." As explained in the Guidance document, "[r]etreat strategies are those strategies that relocate or remove existing development out of hazard areas and limit the construction of new development in vulnerable areas." Examples of retreat strategies include the acquisition and buy-out of "threatened" properties. While many ...

Posted in New Legislation
New Legislation Proposes Government Takeover of PG&E

On February 3, 2020, Senator Scott Wiener (D-San Francisco) introduced Senate Bill 917 (“SB 917”), which would establish a new process for a potential government takeover of Pacific Gas and Electric Company (“PG&E”).

SB 917 would reestablish the California Consumer Energy and Conservation Financing Authority and authorize it to acquire, by eminent domain, the assets or ownership of certain electric or gas utilities that meet its criteria, including PG&E. Local publicly owned energy utilities may elect to join in the eminent domain action brought by the Authority and ...

Governor’s 2020 Budget Signals State’s Willingness to Takeover PG&E

Welcome to 2020! It is a new year and with every new year, comes a lot of new: new goals, new diet, new workout routines that leave every part of you sore...  In the professional setting, a new year brings a lot of “chores,” like closing out the financials for the previous year, perhaps completing year-end reviews, and on and on, and you are left asking, “We do this every year…??”  One of those chores is almost sure to be budgeting, which is universally considered to be unpleasant. Well, imagine having to kick off the year by preparing a budget for the entire state of California, the 5th largest economy in the world

Luckily, that chore was left to Governor Newsom and last week, he released his 2020 budget proposal. The proposed $222 billion dollar state budget ...

Brad Kuhn was quoted extensively in the Daily Journal article “Century-Old Doctrine  Haunts Fire Litigation.” The article provides an overview of how developments in inverse condemnation that occurred in 2019 pose numerous questions for 2020 in California. 

In the article, Brad commented on inverse condemnation—a legal provision under California state law that holds if a power company’s equipment starts a fire, it is responsible for paying property damages, even if they are not found to have been negligent.

He stated that the “inverse doctrine in and of itself is ...

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Tags: Wildfires
Will Long-Awaited Changes to NEPA Materially Alter Federal Environmental Reviews?

On January 10, 2020, the Council on Environmental Quality (CEQ) proposed amendments to National Environmental Policy Act (NEPA) implementing regulations.  The Proposed Rule would represent the first significant overhaul of CEQ’s NEPA regulations in more than 40 years.

The changes in the Proposed Rule are substantial and numerous. 

While the stated purpose of the changes is to facilitate more effective and timely environmental review of federal agency actions, the practical impact of the proposed changes is far from clear.  Below, we focus on some of the more significant ...

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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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