California Eminent Domain Report

On April 12, 2024, in Sheetz v. County of El Dorado, the U.S. Supreme Court unanimously overruled more than two decades of California precedent, holding that legislatively established development impact fee programs must have an essential nexus and a rough proportionality to the impacts from the proposed development project on which they are being applied. The full ramifications of this ruling are still yet to be decided, however, as the Supreme Court left open the possibility of applying the nexus/proportionality tests in a more deferential manner when the development impact ...

Most private development projects in California trigger some sort of discretionary public approval, whether it be environmental review, zone changes, permits, or other forms of entitlement approvals.  As part of that approval process, public agencies are more frequently demanding certain off-site public improvements to accommodate the proposed private development.  Such improvements could include, for example, street widenings to accommodate additional traffic, pump stations for additional water capacity, or flood improvements to address drainage or run-off concerns.  ...

A public agency’s acquisition of private property can sometimes trigger significant severance damages due to eliminating access, cutting off utility service, or taking a substantial portion of a property’s parking.  As agencies look to get more creative in minimizing exposure to large damages claims, they will sometimes offer up mitigation alternatives, such as providing an alternative access, or new utility service, or replacement parking, with such rights being granted from an adjacent or neighboring property.  These mitigation solutions are often a win-win for ...

Join us in Riverside, CA on February 7th as we provide an overview of the eminent domain process, along with best practices for right-of-way acquisition, during the International Right of Way Association (IRWA) Chapter 57 Membership Luncheon. We’ll cover everything from identifying project alternatives to ultimately acquiring specific property.

We will provide an overview of the entire process and illustrate how all of the individual components work together. In particular, we’ll discuss how to effectively navigate the precondemnation process to position for the ...

We’ve been closely watching the Sheetz v. County of El Dorado case, which has worked its way up through the California trial and appellate courts all the way to the U.S. Supreme Court. For a quick refresher, the case concerns whether legislatively enacted development impact fees (such as fees for building permits, etc.) are subject to the rough proportionality and nexus requirements (i.e., can a generally enacted permit fee be the subject of an unconstitutional taking). … 

2023 has been another interesting year in the eminent domain world. We’ve reported on some interesting court decisions, we’ve seen funding make its way to some critical infrastructure projects in California and changing weather continues to make resiliency and natural disasters a hot topic for inverse condemnation law. But before 2023 winds down, there are some exciting end-of-year events and we hope to see you there.  … 

With the frequency of wildfires and flooding, landslides are becoming more frequent throughout California. When public agencies have water pipelines located in hillsides, the situation presents the classic “chicken or egg” debate: (1) did the soil movement cause the pipe to displace and leak water, thereby causing the landslide, or (2) did the pipe leak water independently, thereby causing the landslide? Answering this question addresses one of the key factors for liability for inverse condemnation and other real property causes of action: causation. … 

In California, when a government entity adopts a resolution of necessity to acquire property by eminent domain, that resolution typically “conclusively” establishes the requisite findings of public use and necessity. However, when the government is seeking to condemn a public utility to take over its operations, that conclusive presumption disappears. There has been an ongoing dispute about what standard of review applies in such take-over cases, and the California Court of Appeal recently provided guidance. … 

We recently had the pleasure of collaborating with Robert Thomas and Ajay Gajaria once again for the International Right of Way Association’s (IRWA) biannual report covering numerous eminent domain cases at local, state and federal levels from January through the end of June 2023. This report is an important resource and reference point for professionals in the right-of-way industry.

In the report, we also take a brief look at pending, adopted and failed legislation across the U.S., while also providing updates on federal funding and projects associated with the recent ...

I recently had the privilege of participating as a guest on The Eminent Domain Podcast to talk about trying an eminent domain case to a jury and my thought process around voir dire, opening statements and presentation of appraisal evidence. The Eminent Domain Podcast is ... 

In a recent article for Valuation magazine, “A Changing Landscape: How new state legislation may affect eminent domain valuation,” we examine how new and changed legislation can affect the role appraisers play in eminent domain actions, as well as how condemnation valuations are governed. ... 

In eminent domain cases, it is uncommon that right to take challenges are upheld, and when they are, it is typically a procedural deficiency that can be cured. It is even more unusual where a right to take challenge is successful based on the condemning entity not possessing the power of eminent domain. But, that is exactly what recently happened with an eminent domain case in Northern California involving a popular excursion train – the Skunk Train. ...

In the most recent biannual report from the Real Estate Law Committee of the International Right of Way Association (IRWA), we once again collaborated with Robert Thomas and Ajay Gajaria to examine numerous cases at local, state and federal levels from June to the end of December 2022 that are of interest for professionals in the right-of-way industry.

In the report, we also take a brief look at pending and adopted legislation, while also providing updates on federal funding and projects associated with the recent Infrastructure Bill. The report also examines a similarly notable case ...

Planning and constructing large public works projects can take years. When those projects will impact private property, owners are left in a difficult situation, as the cloud of condemnation hangs over their property, making it difficult to lease or sell. When do planning activities for public projects go too far, and trigger inverse condemnation liability? A recent court of appeal decision, Ramsey v. City of Chowchilla (2023 Cal.App. Unpub. LEXIS 2147) provides some clarity on just how much flexibility is afforded to public agencies. ...

April 1st is an important milestone in California’s water year – marking the annual snowpack assessment and related drought determination. In the inaugural issue of Nossaman’s California Water Views – 2023 Outlook, our attorneys and policy advisors who are committed to the water sector identify the pivotal issues they’re watching now and for the year ahead.

Of particular interest to our readers, Brad Kuhn and Jillian Friess Leivas examine whether or not public agencies could face inverse condemnation liability for any flooding-related damages due to the recent storm ...

With all the recent storms in California, private property is bound to suffer impacts from storm water runoff, landslides, erosion and subsidence. Understanding whether the government bears responsibility for such damage is a complex and fact-specific analysis. However, a recent court of appeal decision, Shenson v. County of Contra Costa (2023 Cal. App. LEXIS 244), provides an excellent history on liability in these circumstances, and explains when natural watercourses, drainage improvements, and a public agency’s approval of development can trigger inverse ...

Join us on April 18, 2023 as we present “Right of Way 101 – An Overview of the Condemnation Process” during the International Right of Way Association (IRWA) Chapter 11 Luncheon in San Diego, CA.

Right of way and condemnation is the overarching process that encompasses everything from identifying project alternatives to ultimately acquiring specific property. During this presentation, we will provide an overview of the entire process and illustrate how all of the individual components work together. In particular, they will provide insight into how to effectively navigate ...

Join me on March 16, 2023, in Anaheim, CA for the Masters of Trial panel, “Tips and Tactics for the Courtroom,” during CLE International's 25th Annual Southern California Eminent Domain Conference. My fellow panelists and I will provide insights regarding best practices to use while in the courtroom to achieve favorable results. We’ll explore jury selection, burden of proof, presentation of evidence, trial preparation, jury instructions, demonstrative exhibits and other eminent domain trial related issues.

During this conference, attendees will learn and discuss how ...

We are excited to be hosting our Eminent Domain seminars in person once again! Please join us in San Francisco on March 14th or Costa Mesa on March 28th. These complimentary programs will focus on current issues involving right of way, property acquisitions and eminent domain. Key topics to be covered by our panels of leading industry professionals include:

• Inverse Condemnation and Disaster: Exploring the interplay of natural disaster and potential liability to public entities in cases such as fire and flood;
• Environmental Considerations for Right of Way Acquisition: Identifying ...

A recent article from Border Report, "Tijuana residents holding out for more money, slowing construction of border crossing," caught my attention.  Not only because we're advising on the border crossing project on the U.S. side, but also because it raises an interesting valuation issue.

According to the article, property owners in eastern Tijuana, where the new port of entry is going to be built, are holding up the project by demanding more money for their land.  Specifically, the owners want to be paid what the land will be worth once the border crossing is built instead of current value.  These increased payment demands ... 

Despite undertaking due diligence, a buyer of real estate may miss pre-existing property damage or a public improvement that was installed without permission or right.  Does the new buyer have a cause of action for a taking -- or inverse condemnation -- for such pre-existing conditions?  The answer is most likely no, as purchasing property does not include the transfer of a takings claim, which remains with the owner of the property absent a clear intent to assign the claim.  A recent case in Los Angeles Superior Court, Ncp Imperial v. State of California (2022 Cal. Super. LEXIS 60513), highlights ... 

Local government agencies sometimes enact short-term building moratoriums for certain areas to further assess changes in land use patterns or slow growth.  Those moratoriums imposed across a large area usually do not constitute a taking.  But what if a moratorium is imposed solely and specifically as to a singled-out property?  Does that moratorium give rise to a taking?  According to a recent court of appeal opinion, the answer is no, at least when that moratorium is imposed as a penalty against the property owner for violating local building codes.

Background

In Lemons v. City of Los ...

An update to our original 2011 post

As we have previously discussed, downzoning (changing the zoning designation for property from a more intensive use to a more restrictive use) can possibly rise to the level of a regulatory taking, depending on each individual situation. A recent case, FFV Coyote LLC v. City of San Jose, 2022 U.S. Dist. LEXIS 195036, analyzed this issue at the motion to dismiss stage and concluded that the plaintiffs had sufficiently plead a Fifth Amendment regulatory takings claim to survive a motion to dismiss.

Background

Plaintiffs own property in San Jose ...

In the most recent biannual report from the Real Estate Law Committee of the International Right of Way Association, we collaborated with Robert Thomas and Ajay Gajaria to examine numerous cases at local, state and federal levels from January to the end of May 2022 that are of interest for professionals in the right-of-way industry.

In the report we also take a brief look at pending, failed and adopted legislation, while also providing updates on federal funds that have been or have yet to be allocated through the recent Infrastructure Bill. The report also provides a breakdown of ...

Housing in California is a hot topic, particularly when the short-term rentals are thrown into the mix. Those opposed to short-term rentals often argue that it removes permanent housing stock from the market and that such rentals negatively impact communities and reduce surrounding property values due to the temporary character of the residents, constant turn-over, noise and overuse. On the other hand, short-term rentals may be an opportunity to maximize income from one’s property, and many investors purchase properties based on their income-generating potential. …

A recent Federal Circuit case, Haggart v. United States, No. 21-1660 (June 22, 2022) determined that under the Uniform Relocation Act, like other fee-shifting statutes, attorneys’ fees are not recoverable if the lawyer is one of the litigants.

Background

This case originally started as a rails-to-trails class action case out of Washington State.  A husband and wife were part of the class that alleged their property was taken.  This proceeding was brought in order to recover compensation for the taking of property by a federal agency.  The Uniform Relocation Act comes into play ...

For the first time, a California state appellate court has decided whether businesses may bring takings claims against the government due to COVID-19 shutdown orders. In 640 Tenth, LP v. Newsom, the California Court of Appeal affirmed the San Diego Superior Court’s dismissal of an attempted class action brought by owners of restaurants, gyms and other businesses that had been closed pursuant to COVID regulations. The Court of Appeal held: “A mandated-but-temporary business closure to deal with a public health emergency” is not a taking requiring just compensation. The ...

Brad Kuhn and Jillian Friess Leivas authored the article “Eminent Domain 2021 Year in Review” for The Appraisal Journal. The article takes an in-depth look at multiple developments on the eminent domain front that occurred in 2021, including the special occasion when the U.S. Supreme Court heard two taking cases. It also examines the impact of the passage of the Infrastructure Investment and Jobs Act, which aims to provide federal funding for infrastructure projects for many years to come.

The Appraisal Journal is a publication of The Appraisal Institute, a global ...

When the government forces a property owner to sell private property, it is usually done through an eminent domain action (a direct taking), and the government is required to pay just compensation. But what if the forced sale is because the property is a public nuisance (for example, if the property is dilapidated and has code violations) -- does that constitute a taking requiring the use of eminent domain? According to a recent Court of Appeal decision, the answer is no: the forced sale of private property based on public nuisance grounds is within the government’s police powers.

In City of Fontana v. United States Bank (2022 Cal.App. Unpub. LEXIS 2127), a residence was in disrepair and the City sent the owners and their lender a notice and order to repair and abate . . . 

On April 5, 2022, Brad Kuhn and Jillian Friess Leivas will present “Recent and Proposed Legislation Impacting the Eminent Domain & ROW Industry” during the Eminent Domain & Right of Way Club's virtual Lounge Event.

Brad and Jillian will discuss how recent legislation is impacting the Eminent Domain and Right of Way (ROW) industry and will review the trends observed in recent and proposed legislation.

Lounge Events are hosted exclusively on the Clubhouse app and are held the first and third weeks of every month.

The Eminent Domain & Right of Way Club is geared toward right of way ...

The International Right of Way Association (IRWA) recently released its annual report, which contains summaries of eminent domain decisions and legislation within the United States, and is an important resource and reference point for professionals in the right-of-way industry. IRWA’s Real Estate Law Committee – which is chaired by Brad Kuhn, Chair of our Eminent Domain & Valuation Group – releases the report biannually. Brad and Nossaman Eminent Domain & Valuation Group associate Jillian Friess Leivas authored the report along with Robert Thomas, the Joseph T ...

Throughout all of the ups and downs in 2021, there have been multiple developments on the eminent domain front, including the special occasion where the U.S. Supreme Court heard a takings case. Outside of case law, 2021 saw the Infrastructure Investment and Jobs Act passed, which aims to provide federal funding for infrastructure projects for many years to come. All in all, 2021 was a fairly busy year for right-of-way and eminent domain practitioners.

Click here for summaries of the prominent cases and developments in eminent domain from 2021...

As water becomes scarcer in California, public agencies are looking for new sources and opportunities to provide water to their communities. When the government identifies those water sources but confronts unwilling sellers, eminent domain sometimes becomes necessary. This is currently taking place in the Antelope Valley, where the Rosamond Community Services District recently approved the adoption of a resolution of necessity to acquire water rights from agricultural land by eminent domain.

The District is facing shortages in its future water supplies and it is limited in ...

The U.S. Supreme Court ruled last week that the Centers for Disease Control and Prevention (CDC) exceeded its authority when it imposed a national eviction moratorium. More precisely, in Alabama Association of Realtors v. Department of Health and Human Services, the Court agreed with a district court determination that the CDC acted unlawfully in banning evictions of residential tenants who declare financial need in counties with high COVID-19 rates. In its decision, the Supreme Court concluded, “If a federally imposed eviction moratorium is to continue, Congress must ...

Property dedication requirements and eminent domain usually don’t mix well: they make for an odd and confusing set of valuation rules. For example, if an agency seeks to condemn property to build a road through an undeveloped area, but that road would be required in order to develop the properties, how should it be valued? Under one set of eminent domain rules (the Porterville doctrine), the property subject to dedication has little value since it would have to be given up as part of any future development. Under another set of eminent domain rules (the “project influence rule” ...

The Supreme Court of the United States rarely hears anything related to eminent domain or takings cases; the Kelo decision in 2005 was the latest “big” case for our industry, although the 2019 Knick decision also made headlines. But in the last week, SCOTUS has shown a keen interest in property rights, rendering several impactful decisions – with a focus on California in particular.

We just reported on the Cedar Point Nursery decision, where the Court found that a regulation allowing unions to access private property constituted a taking. Now, the Court has issued several more ...

On June 23rd, the United States Supreme Court held that a California regulation allowing labor organizations to intermittently access agricultural employers’ property was an unconstitutional taking. The Court reversed the decision from the Ninth Circuit Court of Appeals, an outcome we predicted in our post last year about this issue. The decision is a major victory for property owners, and raises questions going forward about a public agency’s ability to regulate private property rights—particularly as it pertains to allowing temporary access … 

In the City of Fresno, the Tower Theatre is a bohemian landmark, opened in 1929 as a 20th Century Fox Movie House. This year, it became public that Adventure Church was buying the theatre, which has caused tensions to rise in the community, with thousands signing a petition to save the historic theatre, weeks of demonstrations trying to prevent its use as a church, and even a pending lawsuit. The City attempted to defuse the situation by offering Adventure Church an alternative location, which also backfired. So what’s next? The City may be considering using eminent domain to prevent ...

Throughout the United States, old railroad corridors are being abandoned and converted into other uses, such as hiking, biking or other trail purposes. This converted use makes sense, as it is difficult to otherwise compile a long stretch of right-of-way that would be needed to create such trails. But are adjacent property owners entitled to some sort of just compensation when this conversion takes place?  The answer is maybe. 

Before a railroad operator can abandon its right-of-way, it must first secure approvals by the Surface Transportation Board. When that abandonment process ...

For those of you who missed our recent webinar, "Living on the Edge: Managing Sea Level Rise in California", you can find a recording of the event posted on our website.  My colleagues Ben Rubin and John Erskine provided a great overview of ways to protect existing infrastructure and private property through coastal resiliency, what the models and data are suggesting on the future of sea level rise and the status of pending sea level rise legislation in California. I covered risks and possible solutions for public agencies and property owners, with a focus on how Coastal Commission and ...

With the recent flurry of coastal law bills before the California State Legislature and the myriad headlines advising that we must retreat from the shore, sea level rise (SLR) and related climate change topics remain front and center in California. Join our Water Industry Group on May 27, 2021 from 11:00 a.m. to 12:00 p.m. PT for "Living on the Edge: Managing Sea Level Rise in California" as we sort through the pending legislation and discuss the basis for this ever-increasing concern with the encroaching ocean.

Comprised of attorneys from Nossaman’s Water, Environment & Land Use and ...

When a property owner suffers damage as a result of the actions of a public agency or public improvement, the owner typically pursues typical tort causes of action against the agency, along with a claim for inverse condemnation. While liability for the tort claims is decided by a jury, liability for inverse condemnation is determined by a judge. So what happens when both claims are pursued simultaneously -- should the judge rely on the jury’s determination of causation, or should the judge make his or her own findings? 

Recently in Amedee Geothermal Venture I v. Lassen Municipal ...

In California eminent domain cases, appraisers typically have relatively wide latitude in determining fair market value for the property to be acquired. However, there are certain rules they must follow, and when an appraiser violates those rules, the appraiser’s opinion may be completely stricken, leaving a property owner or a public agency with no valuation evidence. This is precisely what happened in a new unpublished California Court of Appeal decision, Solano Transportation Authority v. Anderson (2021 Cal.App. Unpub. LEXIS 2129), where the property owners’ ...

On April 21, 2021, I will be participating in the sixth annual International Right of Way Association (IRWA) Chapter 57 and Southern California Chapter of the Appraisal Institute's (SCCAI) Virtual Joint Meeting. I will be a co-presenter discussing "Project Benefits - Do They Ever Apply, and If So, How Are Benefits Supported?" during which we will cover project benefits and their significance in the eminent domain arena. This program will also include:

• The statutory and case law landscape that gives rise to the issue of project benefits, when and how they may apply and methods and ...

Sea level rise is a critical issue facing public agencies and property owners throughout the United States. In California alone, this phenomenon could impact thousands of residences and businesses, dozens of wastewater treatment plants and power plants and hundreds of miles of highways, roads and railways. Last year, the California Legislature introduced a number of bills that proposed to address, or anticipate, or mitigate the impacts of sea level rise in California. Almost all of those bills, however, failed to make their way to the Governor’s desk. This year, the California ...

In order for a property owner to successfully pursue a regulatory takings claim for inverse condemnation, the owner is typically required to pursue multiple different development options, and face multiple permit denials, before a claim will be ripe. However, a recent California Court of Appeal opinion, Felkay v. City of Santa Barbara, 2021 Cal.App. LEXIS 225, held that “multiple applications are not required where the permit denial makes clear that no development of the property would be allowed under any circumstance.”

Background

In this case, a property owner applied to ...

Providing listeners a convenient and concise medium to access timely reports on important land use topics, Nossaman’s recent podcast offerings make a great addition to your professional playlist.

First, check out Nossaman’s own Digging Into Land Use Law podcast, which covers the development of all things in, on or above the ground. Recently, I recorded the episode “Valuation and Damages: Assessing COVID-19’s Economic Impact.” Changes in how businesses operate, restrictions on property use and reduced revenues brought on by mandated closures due to COVID-19 have had ...

Sometimes a public agency ends up abandoning an eminent domain proceeding, even after the property owner or business has moved from the property. Under Code of Civil Procedure, section 1268.620, if a defendant “moves from property” and the agency subsequently dismisses the suit, the owner/business may be able to recover payment of all damages proximately caused by the proceeding and its dismissal.  One would think determining whether an owner/occupant has “moved” from the property would not be an issue for dispute.  But a recent unpublished California Court of Appeal ...

When the government requires a property owner to give up private property, the takings clause normally comes into play and the government is required to exercise its power of eminent domain. But is that always the case? According to a recent court of appeal opinion, People v. Gonzalez (Nov. 24, 2020, D077208), there are a number of circumstances in which the government can require a property owner to sell without triggering a taking of private property.

In Gonzalez, a property owner was charged with using his property without a permit or variance and maintaining an unauthorized ...

On December 3, Brad Kuhn and Maya Hamouie will co-present “Business Valuation and Damages: Assessing COVID-19’s Economic Impact” at the virtual lunch hosted by Chapter 1 of the International Right of Way Association (IRWA) for its members.

Brad and Maya will review the impacts of COVID-19 on the economy, discuss business valuation methodologies and how to take COVID-19 into consideration, then review how these scenarios are playing out in litigation. Following the presentation, they will have an interactive Q&A session with members of the audience.

Chapter 1 of IRWA seeks ...