We reported back in October that the Long Beach City Council approved the use of eminent domain to acquire nearly 10,000 square feet of property to widen Pacific Coast Highway. Now in February, the City Council is once again considering the issue. So why, nearly four months later, is the issue back before the City Council? According to a recent Costa Costa Times article, the reason is because the project description has changed.
Back in the "pre-Kelo" era, agencies would routinely proceed with planned eminent domain despite minor changes to the project description. However, with recent procedural reforms and greater public scrutiny of eminent domain, Long Beach has correctly determined that taking a step back is a wise move here.
While the public hearing procedure can be burdensome and time consuming, a public agency that proceeds with eminent domain using a resolution of necessity that does not match what the agency needs to acquire is at great risk. Sometimes, even now, the agency will get away with changing the project description without adopting a new resolution of necessity, but for a saavy property owner, such a misstep can provide leverage for a right-to-take challenge that could significantly delay -- or even defeat -- a project. By going back through its administrative process, Long Beach should avoid such a challenge, which could mean that its "delay" actually gets the project built faster.
This is a good opportunity to point out how important it is for public agencies (1) to work with their engineers and planners to ensure the project description is perfect the first time around, and (2) to allow for sufficient time in case project details do change. If the agency is facing tight project deadlines, especially when funding is at risk, changing the project description or take area could mean starting from scratch: a new appraisal; a new offer and negotiation process with the property owner; and a new hearing on a resolution of necessity.
Brad Kuhn, Chair of Nossaman's Eminent Domain & Valuation Group, guides private and public sector clients through complex real estate development and infrastructure projects – particularly with eminent domain/inverse ...
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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