Posted in Events

Next week, Nossaman's eminent domain group will be attending the International Right of Way Association's Annual Education Conference in San Diego.  While we've been attending the conference for several years, we're excited to have it taking place in our own backyard, and we know that our friends and colleagues at Chapter 11 will do an amazing job with it.  If you're going to be there, make sure you take some time to visit with us.  There will be plenty of places to find us:

  • On Sunday and Monday, we will be hosting a booth in the exhibition hall.  In addition to it being a great opportunity to seek ...
Posted in New Legislation

Two days ago, the Appraisal Foundation issued a memorandum to Appraisal Regulatory System Stakeholders that warned of the Appraisal Institute approaching members of Congress to sponsor legislation that would essentially dismantle the current national appraiser regulatory system.  The Appraisal Foundation states that provisions being suggested by the Appraisal Institute include the elimination of the Appraisal Subcommittee and the removal or significant dilution of the Congressional authority of the Appraisal Foundation."  It asserts that removing the existing ...

Posted in Court Decisions

In California eminent domain cases, a property or business owner is entitled to recover litigation expenses (attorneys’ fees and expert costs) when the public agency’s final offer of compensation is unreasonable and the property owner’s final demand is reasonable.  (See Code Civ. Proc., § 1250.410.)  But what happens when the government agency’s offer is subject to approval of a federal agency, the City Council, or the Board of Supervisors?  Is this a reasonable offer under Section 1250.410?  This week, the California Court of Appeal in City and County of San Francisco v. PCF ...

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As the old adage goes, the three most important things to consider with real estate are location, location, and location.  But any developer who has lived through a real estate cycle, and any public agency that is under a funding deadline or working through a project’s environmental approvals, knows that timing may be even more important than location.  Indeed, timing considerations often create competing interests between public agencies and developers.  On the one hand, before commencing right of way acquisition, public agencies are required to comply with complicated ...

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It appears the state assembly is trying to get California back on the redevelopment wagon...again. (For a brief history lesson on redevelopment, see below.)  Assembly Bill 2 (AB2), which passed the assembly earlier this month, would create new entities called Community Revitalization Investment Authorities that would have the same legal authority as redevelopment agencies, i.e., the power to issue bonds, provide low-income housing, prepare and adopt a plan for an area, and among others, acquire property using the power of eminent domain.  The legislature explains that the ...

Posted in Valuation

Gas stations and car washes are primarily owner-occupied convenience businesses, typically located near freeway off-ramps and at the intersections of well-traveled roadways.  As a result, they're frequently involved in eminent domain acquisitions for freeway expansions or road widenings.  A common question is how should such properties and businesses be valued to satisfy California's requirement of "just compensation"?

A recent article by Retail Petroleum Consultants, Condemnation: Appraising Gas Stations and Car Washes, How to Ensure Just Compensation for Business and ...

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Posted in Projects

Right of Way Certification is a key project milestone; not only does it mean a project is ready for advertising but obtaining certification by a certain date is often a prerequisite for funding.  Tying certification to dollars means it’s crucial that agencies acquire property and/or obtain orders for possession in a timely manner.  As we’ve discussed here before, this can mean filing an eminent domain action while still negotiating with property owners, something many agency boards are reluctant to do.

The latest example of the perils of prejudgment possession comes out of Butte ...

Posted in Court Decisions

One of the issues often disputed between public agencies and property owners in eminent domain actions is the assessment of severance damages, and in particular, whether damages should be based upon (i) the terms of the resolution of necessity, or (ii) construction of the project in the manner proposed.  This dispute grows from a seeming conflict between a court of appeal decision, County of San Diego v. Bressi (1986) 184 Cal.App.3d 112, and Code of Civil Procedure section 1263.420.  Specifically:

  • Bressi held that in a condemnation action, (1) the jury must determine damages caused by ...
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Posted in Court Decisions

In California eminent domain actions, absent special circumstances (such as an abandonment, successful right to take challenge, or inverse condemnation finding), a property or business owner is typically only entitled to recover litigation expenses (attorneys' fees and expert costs) in one circumstance:  where the public agency's final offer of compensation is unreasonable and the property owner's final demand is reasonable.  In making this determination, the judge is only to consider the final offer and demand that were made at least 20 days before trial.  (See Code Civ. Proc ...

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I wanted to provide a quick update on two recent cases from the California Court of Appeal.

The first, Golden State Water Company v. Casitas Municipal Water District (April 14, 2015), involves what appears to be an issue of first impression in California:  can Mello-Roos financing be used to fund an eminent domain action to acquire a utility company's assets?  In Golden State Water Company, the Casitas Municipal Water District wanted to acquire the assets of the Golden State Water Company for the purpose of taking over the provision of water to many residents in Ojai, California ...

Posted in Events, Valuation

It is increasingly important for buildings to be energy efficient.  So-called green buildings can not only lead to more efficient energy use, but can also result in significant cost savings over time.  Indeed, green buildings may be more valuable than comparable buildings that are not as energy efficient.  This is an important factor to consider in eminent domain proceedings.  This point was driven home in a recent presentation made by Michael Frost, LEED AP, First Vice President at CBRE in its Palo Alto, California office.  He made the presentation to a diverse group of right of way ...

Posted in Projects

The City of Temecula is moving forward with the French Valley Parkway.  The project involves construction of a new arterial, as well as improvements to the I-15 Winchester Road interchange.  Phase I of the project included constructing southbound off-ramps for the future Parkway.  These ramps are complete, but as a post on The Transit Coalition Inland Empire blog asked a year ago - "What the heck is going on with French Valley Parkway?"   The answer is the same now as it was then -- Caltrans and the City are working to establish the scope and phasing of the remaining improvements.  So when will it ...

It depends.  A recent decision out of the Federal Circuit tackled this very issue, and the court's decision strongly suggests that a taking could arise under the right circumstances.  (Filler v. U.S. (Fed. Cir. Mar. 10, 2015) Case No. 2014-5117.)  As you probably already guessed by my use of the phrase "strongly suggests," both the lower court and the Federal Circuit in this case found that the plaintiff's challenge did not present the "right circumstances."

After sustaining a work-related injury, an employee of the U.S. National Marine Fisheries Service visited the ...

Posted in Projects

On Tuesday, the Lake Elsinore City Council adopted a Resolution of Necessity to acquire a 2+ acre property in order to expand Serenity Park.  As Michael Williams describes in his article "City hopes to take over boat launch,"  the expansion is part of the City's plan to develop a skateboarding arena .  The City's staff report says the City has been negotiating with the property owners for about a year, but that they have not agreed on a price for the property.  The staff recommended the city move forward with an eminent domain lawsuit.

It isn't clear why the owners rejected the City's offers ...

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Posted in Projects

As this article by OCTA explains, the Southern California region is growing both in terms of population and in the volume of goods moving through the region via both road and rail.  I am sure many of us are familiar with the impacts this has on our daily lives -- like being stuck for what feels like hours at a train crossing.  But several local agencies are doing what they can to ease our pain.  In Orange County, OCTA is in the midst of its OC Bridges program building grade separations.  And in Los Angeles, the Alameda Corridor-East Construction Authority (ACE) has completed several new ...

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We've been following the saga of the Keystone XL pipeline for a while now, and the battle rages on in Washington.  Yesterday, the Republican-led Senate attempted to override President Obama's veto of a bill to approve the pipeline.  For those a bit lost in all the political and legal wrangling, the recent story began with a bill in Congress designed to grant approval to the controversial pipeline project.  The bill passed the Senate on January 29 and the House in mid-February and was sent to the White House for President Obama's signature.

But just as promised, President Obama vetoed the ...

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Posted in Valuation

As California continues to expand and improve its infrastructure, public agencies are more frequently running into contaminated property.  A frequent question for eminent domain attorneys is:  "how does contamination impact 'fair market value' in a condemnation action?"  My general advice is that the contamination should be treated just as it would in an open market transaction.  But how is contamination handled in a typical transaction -- and how does it impact value?  Aside from potential clean-up costs, are there lending issues, and is there a general stigma with contaminated ...

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Public projects take years of planning and environmental review usually involving outreach to neighboring property owners and other stakeholders. During this process, potential right of way impacts are identified and property owners (and their potential buyers or tenants) become aware of the planned project. As we have described in the past, this can result in a cloud of condemnation over the property, affecting the value of that property. Property owners often feel they should be compensated for this uncertainty. But it is difficult for owners to succeed on these claims. (Check ...

California’s infrastructure is aging. There have been numerous reports of water line breaks and gas line leaks, and public agencies have been moving quickly to upgrade their utilities to minimize these risks and satisfy increasing demands. When incidents do occur, when do agencies face potential liability in inverse condemnation? A recent California Court of Appeal decision, Kelly v. Contra Costa Water District (Feb. 10, 2015) 2015 Cal.App.Unpub.LEXIS 924, while unpublished, provides some guidance.

In Kelly, the owners of a self-storage facility in Pittsburg, California ...

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The burning question, is why?  While this is not the first time the U.S. Supreme Court has ever granted a petition for review in the same case, it is certainly not common.  And, it is downright uncommon for the Supreme Court to grant a second petition for review when the central issue in the case is a takings issue.  So what is the Supreme Court planning to do?  Are they going to revisit their 2013 decision and find that they made a mistake, and that the Hornes are actually required to first bring their takings claim in the Court of Federal Claims?  Or, is the Supreme Court ...

When a public agency acquires a portion of property, under California law the property owner is entitled to "severance damages" -- or damages to the remainder portion of the property that was not acquired.  Usually, determining what constitutes the "remainder property" is relatively straight-forward.  But not always.  And, the determination could have a significant impact on the amount of compensation the public agency must pay, as a property owner is not entitled to compensation for damages to separate and independent parcels that are not touched by the condemnation.

So how is the ...

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In the aftermath of last year’s Rails-to-Trails DecisionMarvin M. Brandt Revocable Trust v. United States, 572 U.S. ___ (2014), the valuation of rail corridors may become increasingly necessary.  Typically there are three approaches to valuing rail corridors:  1) Across-the-Fence approach, 2) Comparable Sales approach and 3) Income approach.

  1. The Across-the-Fence approach (ATF Method) -- the most popular approach for valuing rail corridors -- appraises land utilized as a right-of-way by assuming that its market value per square foot is equal to the value of adjacent or ...
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At its meeting last week, the California Transportation Commission allocated $174.8 million to 85 projects around the state.  Some of the projects receiving allocations this month include:

  • $22.5 million for  construction of SR-905/SR-125 connectors in San Diego
  • $20 million to realign Highway 1 in San Luis Obispo County away from the eroding shoreline
  • $19.4 million to rehabilitate the Elysian Viaduct Bridge in Los Angeles
  • $6.3 million for reabilitation of the Sierra Point Overhead bridge near South San Francisco
  • $5.9 million to replace the aging Hilt Road Overcrossing on I-5 near ...
Posted in Events

On March 5, Nossaman's eminent domain attorneys are hosting a complimentary seminar, "Taking Your Project from Concept Through Construction."  We have some great topics and an exciting group of experts joining us to cover topics such as implementing best practices for design-build projects during right-of-way acquisition, preparing for CEQA challenges at the condemnation stage, acquiring contaminated properties, and addressing business goodwill claims.  We will also provide a recap of the most important eminent domain court decisions and legislation from 2014.  Attendees ...

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Posted in Events

The Transportation Research Board’s 94th Annual Meeting is well under way in Washington D.C. (January 11-15, 2015).  The meeting, which has attracted over 12,000 attendees and 300 exhibitors this year, provides an opportunity for transportation professionals to share knowledge and perspectives with colleagues and to learn about the latest developments in transportation research, policy, and practice.  More than 5,000 presentations and almost 750 sessions and workshops address topics of interest to policy makers, administrators, practitioners, and researchers.  A ...

So the new Congress has been sworn in back in Washington, and the nation gears up for the first big clash between the Republican-controlled Congress and President Obama.  What will the first major battle be:  health care; taxes; immigration?  No, the first big clash appears destined to be over the controversial Keystone XL pipeline project and the potential for over 1,000 miles of right of way subject to potential eminent domain.  As reported today by Reuters,

Republican senators kicked off the new U.S. Congress with legislation to approve the hotly disputed Keystone XL oil pipeline ...
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In September 2014, the Court of Appeal for the Fourth Appellate District issued a surprising decision, finding that even if an applicant maintains that it is accepting imposed permit conditions "under protest" and expressly asserts that it plans to challenge those conditions in court, it waives any such challenge by building the approved project.  (Lynch v. California Coastal Commission (2014) 229 Cal.App.4th 658.)  In reaching this conclusion, the majority found that the protest procedure provided in the Mitigation Fee Act was inapplicable because that Act does not ...

Property owners typically have a lot on their minds when they find out that the government is going to be taking their property.  For residential owners, they need to worry about where they are going to live with their families once the agency takes possession of their home.  For business owners, they have to figure out how to run a business while planning for a forced relocation -- a relocation that may be coming at a terrible time or on a terrifyingly fast schedule.

The owners must also worry about whether they are receiving the right amount of money -- i.e., the "just compensation" the agency ...

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Posted in Projects

The California Transportation Commission met in Riverside on Wednesday.  On the agenda was the allocation of $254 million in funding for transportation projects throughout the state.  You can read Caltrans' press release here.  Caltrans Director Malcolm Dougherty commented:

Investing in our infrastructure benefits Californians for generations to come and these projects will improve mobility for all users of the transportation system, whether they choose to travel by car, take transit or ride a bicycle.

Just under half of the money allocated came from Prop 1B funds.  ...

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Posted in Projects

There has been a remarkable movement lately throughout California:  local government agencies are attempting to take over investor-owned, quasi-public utility companies in an effort to reduce utility bills to their constituents.  A number of electric and water utilities are facing pressure from agencies to sell their assets -- or face having them acquired through eminent domain.  Does this make sense?

As just one example, according to one recent article by Garth Stapley in the Modesto Bee, SSJID can boot PG&E from Ripon, Escalon, Manteca, the South San Joaquin Irrigation ...

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Posted in New Legislation

On November 24, 2014, the Federal Highway Administration (FHWA) published a proposed rule that would amend the regulations governing how Federal grant recipients acquire, manage, and dispose of real property.  Thus, the proposed rule, if it becomes final, has the potential to impact the daily operations of transportation agencies all across the United States.  Some of the more notable proposed revisions include:

  • Broader authority for public agencies to proceed with construction contract bidding when the agency has not acquired all real property interests needed for the ...
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Posted in Court Decisions

Agencies acquiring private property for a public project conduct thorough investigations to determine whether the property has environmental contamination.  If contamination is found, the question arises whether evidence of the contamination will be admissible in the eminent domain proceeding.  In California the answer is yes, based on a single case that involved evidence of remediation costs introduced by both sides without objection.  In Redevelopment Agency of Pomona v. Thrifty Oil Company, 4 Cal.App.4th 469 (1992), the Agency sought to condemn a parcel owned by Thrifty that ...

On November 4, 2014, San Benito County voters went to the poles to vote on Measure J, the measure designed to prohibit hydraulic fracturing, known as fracking, and related gas and oil extraction activities, as well as other "high-intensity petroleum operations," including acid well stimulation and cyclic steam injection. The measure also banned any new gas or oil drilling activity - even conventional, low-intensity activity - in areas the county zoned for residential or rural land use.

With 59% of the vote, supporters approved Measure J in an effort to protect the local environment ...

Posted in Projects

According to Robin Richard’s article, "Needles May Exercise Eminent Domain to make way for Highway 95 Connector," the City of Needles is considering adopting Resolutions of Necessity to acquire 14 parcels for its long-planned I-40 connector project.   The City will be acquiring permanent road easements and temporary construction easements of various sizes.  The impacted properties include residential, commercial and motel uses.  Some of the acquisitions are fairly small, but as my colleague Brad Kuhn recently posted, even these sliver acquisitions can have impacts to the ...

The question now is, is the court's statement merely a bump in the road or a roadblock?  The United States filed the eminent domain action seeking to condemn certain access rights so it could increase its profitability when it sold vacant federal land in Alameda County, California.  In its complaint and declaration of taking, the United States alleged that it needed to condemn the property interest for the "continuing operations" of the Alameda Federal Center.  In support of the taking, the United States relied on the General Service Administration's general authority.  The federal ...

Posted in Projects

As traffic continues to increase and roadways become more congested, California's transportation infrastructure needs to keep up.  While there has been a concerted focus on alternative methods of transportation (such as rail, bikeways, etc.), street and highway widenings are still a major focus of local government agencies.  The County of Sacramento is no different, as it embarks on the Hazel Avenue and Fair Oaks Boulevard road widening projects.  These street improvement projects typically require right-of-way acquisition, and while the acquisitions are typically small ...

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Posted in Events

The Self-Help Counties Coalition's 2014 Focus on the Future Conference is just around the corner.  This year, it is taking place in Santa Clara on November 16-18.  I will be presenting on the topic "Precondemnation Planning & Early Acquisition Efforts: Best Practices to Acquire Right of Way Without Blowing Your Project's Budget" on Tuesday, November 18 from 10:30 a.m. to 12:00 p.m.  My panel includes Bijal Patel at Santa Clara Valley Transportation Authority, Chip Willett at Dokken Engineering, Rob Caringella at Jones, Roach & Caringella, and Joey Mendoza at Overland, Pacific & ...

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In late September, Governor Brown signed into law AB 229 and SB 628, which are intended to finance public capital facilities or other specified projects of communitywide significance previously financed by redevelopment agencies.

AB 229 and SB 628 both seek to expand existing but underutilized Infrastructure Financing Districts (Financing Districts).

AB 229 authorizes the creation of Infrastructure and Revitalization Financing Districts (Revitalization Districts) by the legislative body of a city or county[1] to finance projects of communitywide significance pursuant ...

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Most people understand the basic concept of eminent domain: the government takes someone’s private property and pays the owner just compensation for the taking.  Sometimes, however, the government takes (or damages) private property without filing an eminent domain action.  These situations end up as inverse condemnation cases, where the property owner sues the government for compensation for the taking.

Assuming the court concludes that the government has indeed taken or damaged property, the end result in an inverse condemnation case is about the same as any other eminent ...

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In a published decision, the California Court of Appeal for the Second Appellate District rejected the California Coastal Commission's ("Commission") collateral estoppel argument and found that there is no rational nexus or rough proportionality between the work proposed by an applicant on a private residence a mile from the coast and a lateral public access easement imposed by the Commission as a condition of approval.  Accordingly, the easement condition amounted to an unconstitutional taking.  (Bowman v. Cal. Coastal Com. (Oct. 23, 2014).)

In 2002, the property owner of ...

Posted in Events

The Southern California Chapter of the Appraisal Institute will be holding its 47th annual Litigation Seminar on November 13, 2014 at the City Club in Los Angeles.  I'll be presenting on the topic "The Perception of Advocacy and Consequences for the Appraiser."  John Ellis, MAI, from Integra Realty Resources, Steven Fontes, MAI, from Mission Property Advisors, and Lance Hall, from FMV Opinions, Inc., will also be on my panel and will provide excellent insights into appraiser bias and its impacts on a valuation assignment.

At the seminar, my colleague Bernadette Duran-Brown will also ...

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Posted in Projects

The Contra Costa Times reported last week that the City of Pittsburg certified the environmental document for the Donlon Boulevard extension after nearly two decades of trying.  Although the vote was unanimous, the project has vocal resistance.   According to the Save Mount Diablo website, the project may induce growth, destroy a "spectacular" ranch and actually create rather than relieve traffic congestion.  That group has made clear it does not agree with the City's action.

Often once an agency has certified its environmental document, right of way acquisition soon follows.  ...

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Posted in Events

For those of you interested in hearing from eminent domain experts across the United States on hot topic condemnation issues, I hope you'll join us at the ALI-CLE's 32nd Annual Eminent domain and Land Valuation Litigation Program.  The Program will take place February 5-7, 2015, at the Hotel Nikko in San Francisco.  I'll be presenting on a panel with Dwight Merriam (Connecticut) and Mark Murkami (Hawaii) on "Denominators and Bright Lines:  The Search for the Relevant Parcel in Eminent Domain and Regulatory Takings."

If seeing me doesn't get you interested (understandably), hopefully ...

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Posted in Projects

At its meeting last week, the California Transportation Commission allocated $1 billion for local streets, highways and public transit.  This means a significant amount of money will be available for city, county and regional transportation agencies who will submit their projects to Caltrans in the coming months.   You can read Caltrans District 7 Press Release here.

The projects are spread around the state and include some major funding for rail projects as well as the usual highway improvements and also show that money will be coming to several California regions.  You can see a full ...

Posted in Valuation

Most of us have been inconvenienced by road construction or other public works.  Streets can be more congested, exits closed, and traffic re-routed, making it more difficult to get to the restaurants, yogurt shops, book stores and other businesses we usually frequent.  Not surprisingly, these businesses often see their revenue decline while construction continues.  Does the public agency owe these businesses anything for these losses?

The short answer for most of the country is, usually not.  Courts generally consider construction-related inconvenience part and parcel of living ...

Posted in Right to Take

Often times government agencies require property for a public project that is already put to a public use. What are the acquiring agency’s options, assuming an agreement cannot be reached prior to filing a condemnation action?

1.  A condemning agency may acquire property that is already devoted to a public use if the proposed use will not unreasonably interfere with or impair the continuance of the existing public use. The complaint and resolution of necessity must specifically reference the Eminent Domain Law for joint public use. (Code of Civil Procedure section 1240.510). If a ...

Posted in Projects

Good news California:  local projects are continuing to receive federal funding.  Caltrans announced last week that the U.S. Department of Transportation has granted nearly $35 million in TIGER funds to six local and regional projects throughout the state.

The projects receiving funding include:

  • East Side Access Improvement Project ($11.8 million): This Los Angeles County Metropolitan Transportation Authority project will create a network of bike lanes and sidewalks for bicyclists and pedestrians to access the new Regional Connector/1st Central Station in Los Angeles ...
Posted in Right to Take

In a thought-provoking article, Anthony F. Della Pelle considers the interesting question of whether the City of Los Angeles could simply take the LA Clippers via eminent domain.  One might typically associate California’s Eminent Domain Law with the taking of land for public utility easements or mass transit projects.  Della Pelle was inspired by an article by Harvey Wasserman, in which Wasserman proposed that the power of eminent domain should be used to take all sports franchises nationwide.  Wasserman reasoned:

The Fifth Amendment says the public has the right to take property ...

Posted in Events

If you're a right of way professional, your fall schedule could be quite busy.  I'm having difficulty keeping track of all the upcoming events, so I thought I'd put them all in one place.  Here's what we have on the agenda:

  • September 5:  Mobility 21's annual Southern California Transportation Summit.  The event will take place at Disneyland Hotel, and will feature an array of fantastic speakers from various local public agencies, including Riverside County Transportation Commission (RCTC), Los Angeles County Metropolitan Transportation Authority (LACMTA), the California ...
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Tags: Events
Posted in Projects

As public agencies continue to expand and build infrastructure throughout California, I've noticed a few recent themes.  First, many projects are supported by federal funds, usually through the Federal Transit Administration (FTA) or the Federal Highway Administration (FHWA).  And second, agencies are becoming more creative in exploring joint development opportunities with the private sector to enhance their projects and the surrounding community.

To the extent you are part of, or work with a public agency, and are involved with a federally funded project involving a potential ...

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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