Posts in Right to Take.

As any experienced California eminent domain lawyer knows, there is a unique statutory mechanism that allows parties to bring a legal issues motion to secure a court’s ruling on a litany of issues that impact compensation. This statutory right is set forth in Code of Civil Procedure section 1260.040 and reads as follows:

"(a)          If there is a dispute between plaintiff and defendant over an evidentiary or other legal issue affecting the determination of compensation, either party may move the court for a ruling on the issue.  The motion shall be made not later than 60 days before ...

When public agencies analyze a potential public project, they often need to gain access to private property for surveys, testing, and to otherwise investigate whether a particular property is suitable for a planned project.  Often, agencies gain access by talking with the property’s owner and reaching agreement on a right of entry.  But where the owner refuses to allow access, the agency must resort to the courts.  For decades, agencies have followed a set of rules that allow them to obtain a court-ordered right of entry with minimal notice and without most of the formality of a ...

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Santa Clara County, the City of Palo Alto, and the local Housing Authority have come together to acquire the Buena Vista mobile home park from its current owner, the Jisser family, in an effort to save the mobile home park from closure. According to the Silicon Valley Business Journal, the mobile home park contains the homes of 400 or so mostly low-income residents.  The Jisser family has been trying to close the mobile home park since 2012 to prepare for future redevelopment of the site.  If the Jisser family refuses the government’s latest offer to purchase the mobile home park, the trio ...

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Every once in a while, infrastructure projects we're working on involve traversing Indian lands.  For those of you involved in such projects, you should take a look at the Final Rule published by the Department of the Interior, which went into effect last month.  The Federal Register summarizes the Final Rule as follows:

This final rule comprehensively updates and streamlines the process for obtaining Bureau of Indian Affairs (BIA) grants of rights-of-way on Indian land, while supporting tribal self-determination and self-governance.  This final rule further implements the ...
Posted in Right to Take

With the improving real estate economy, there have been an influx of new large development projects throughout California.  With these new proposed developments, it is common for local government agencies to require public improvements -- such as streets or utilities -- to support the influx of traffic and people to a previously undeveloped area.  Those public improvements commonly take place off the developer's property, so what happens if surrounding property owners do not want to sell their land to support such improvements for a private development?  Can eminent domain be ...

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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 ...

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 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 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 ...

One issue that eminent domain attorneys face routinely involves helping businesses obtain the relocation benefits to which they are entitled under the law, while at the same time pursuing a claim for lost business goodwill.  To us, there is a clear difference between the two, as we are indoctrinated early in our careers into understanding that the two types of relief, while seemingly closely related, are instead largely unrelated in the eyes of the law.

But to a typical business owner facing a forced relocation due to a government acquisition, the issues can appear thorny and complex.  ...

Posted in Right to Take

It's not too often you see one government agency threaten another agency with eminent domain.  But it does happen.  A recent article by Barbara Henry in the U-T San Diego, Encinitas has few options on Pacific View site, highlights on such dispute taking place right now.

According to the article, the City of Encinitas very much wants to acquire the Encinitas Union School District's 2.8-acre property that formerly housed the Pacific View Elementary School.  But the School District has rejected the City's overtures, turning down a $4.3 million offer to purchase.  Instead, the School ...

Posted in Right to Take

The House of Representatives has once again resurrected the "Private Property Rights Protection Act" (HR 1944), a bill that would limit the power of eminent domain on a nationwide scale.  I say once again, because as we reported in 2012 (see January 26, 2012 post by Brad Kuhn), the House Judiciary Committee approved a nearly identical bill by an overwhelming 23-5 vote, only to have the bill languish on the House floor.  The vote this time around, however, was nowhere near as emphatic, as the bill barely passed out of the Subcommittee on the Constitution and Civil Justice with a skimpy 5-3 ...

Posted in Right to Take

Before you get your hopes up, this is not a reference to "Opposites Attract" by Paula Abdul, and I will not be singing.  Rather, I am referring to the Montana Legislature's recent decision to repeal a two-year-old law that gave private power-line developers the authority to condemn private property.  The 2011 law was passed in order to override a state court decision prohibiting the use of eminent domain for private power-line development.  As reported in the Independent Record, supporters of the repeal effort believe "that the law gave unprecedented power to private companies to run ...

A few weeks ago, the California Court of Appeal issued an interesting unpublished decision detailing a long, drawn-out eminent domain battle in Riverside County.  I haven't blogged about it yet because, well to be honest, it feels like such a crazy story I couldn't figure out where to start or what to cover.  But here we go.

Background

The case, Elsinore Valley Municipal Water District v. O'Doherty, starts off rather dull.  In order to serve a residential development, the Water District planned to construct a pump station in a public right of way.  Because it was believed the planned ...

We're looking back on 2011's wild ride and looking forward to the twists and turns still in front of us in 2012.  We've summarized all of this into the 2011 version of our annual Eminent Domain Year in Review piece.

For those who don't want to take the time to read the actual article, here are a few of the highlights:

  • In January, Governor Brown proposed eliminating redevelopment agencies.  In June, he finally got legislation to accomplish that goal.  In August, the Supreme Court agreed to hear a legal challenge to the new law.  And on December 29, the Supreme Court upheld the law dissolving ...
Posted in Right to Take

Here's a new one.  Imagine you have a government agency as your tenant, paying above-market rent, and the lease is set to expire.  The government tells you they're going to move to a new site, but they need to hold over for a while until the new site is built.  You figure, fine, the parties will just continue with the same rental rate until the government tenant moves.  Hey, what other option does the government have?  It would be incredibly expensive to find a temporary site and do a temporary move until the permanent relocation site is finalized.

This logic may work with any typical private-market ...

One of the peculiarities with California's eminent domain law lies with the way it addresses situations in which an agency makes a deposit of probable compensation in a case in which one or more of the defendants raise a right-to-take challenge. 

The issue came to a head yet again, with the California Supreme Court holding that a lender's withdrawal of a condemnation deposit does not result in a waiver of the property owner's right to take challenge.  The decision, Los Angeles County Metropolitan Transpiration Authority v. Alameda Produce Market (November 14, 2011), chronicles the long ...

As you may recall, we've been closely following an eminent domain action pending in Sacramento County Superior Court involving the Rancho Cordova Redevelopment Agency.  The case involves the RDA's efforts to acquire a 9-acre site owned by the Lily Company.  After the property owner lost its challenge to the RDA's right to take the property, the case proceeded to a jury trial with respect to the property's value.  The results are in, and it's not a happy ending (at least so far) for the RDA. 

The Sacramento Bee reports in its article, "Price tag sky rockets for Rancho Cordova in land ...

Posted in Right to Take

Eminent domain is typically used in the context of a freeway widening, a grade separation project, a utility corridor, or perhaps a new school.  It's not often you hear about the use of eminent domain in the healthcare industry.  But it does happen. 

Take a recent example in Oceanside:  the Tri-City Medical Center, a public hospital, is looking to expand its facility.  It apparently has the power of eminent domain, and according to a North County Times article, OCEANSIDE:  Tri-City seeks to take land through eminent domain, it's ready to use that power this week by adopting a ...

As originally reported by Robert Thomas at inversecondemnation.com, a petition for certiorari was filed asking the U.S. Supreme Court to address "[w]hat category of takings are subject to heightened judicial scrutiny, and when is the risk of undetected favoritism so acute that an exercise of eminent domain can be presumed invalid?"  While Justice Kennedy brought this issue to the national stage when he raised the possibility of such conduct in a recent concurrence, as of today, and likely tomorrow, the question remains unanswered. 

In Kelo v. City of New ...

Roy Fowler's Furniture Station has been a well-known staple within the City of Azusa.  The 39-year-old store has witnessed much change in the area known as Corky's Corner.  However, the store is now officially shutting down after the City of Azusa acquired the property through eminent domain.

According to an article in the San Gabriel Valley Tribune, "Long-time Azusa furniture store to close after losing battle against city, eminent domain," the Furniture Station finally reached a settlement with the City after a contentious eminent domain battle.  The City sought to ...

We've blogged a lot in the past two months about redevelopment issues and the Governor's plan to help right California's budget by, among other things, eliminating redevelopment agencies.  But most of what we've written has viewed redevelopment from the 30,000 foot level. 

For policy-making decisions, viewing the big picture is hugely important.  But a case making news this week out of National City reminds us that the redevelopment fight is also quite personal. 

The Community Youth Athletic Center has been fighting what it perceives as an attack on its very existence for nearly four ...

Recently we've been reporting on redevelopment agencies' efforts to utilize redevelopment funds before they're no more under new proposed legislation.  Whether you agree or disagree with the existence of redevelopment agencies, sometimes those agencies acquire properties on behalf of other government entities for undisputed public purposes.  For example, the Redding Redevelopment Agency is currently acting on behalf of the State Administrative Office of the Courts to acquire property necessary to build a new Shasta County Courthouse.  If redevelopment agencies are ...

Over the weekend, Chlorinated Liberty posted a pretty good article that articulates the primary reasons people cite as the basis for abolishing redevelopment agencies.  The article, "How Eliminating California's Redevelopment Agencies Spurs Economic Growth," takes a reasoned approach to why the free market is better equipped to handle redevelopment and blight remediation than the government - and its redevelopment agencies. 

The article walks through some statistics that show that many of California's redevelopment agencies did not report any job creation generated by their ...

A January 27 article in California Watch, "Eminent domain battles rage on despite Prop. 99," reflects the ongoing confusion that surrounds the efforts to reform eminent domain in the aftermath of the Supreme Court's 2005 Kelo decision

The article's premise is that Proposition 99, approved by California's voters in 2008, did not stop what the author describes as "eminent domain abuse."  But the case example that underlies the article reflects a fundamental misunderstanding about what Proposition 99 does (or does not do), and what people typically mean when they talk of "eminent ...

I received an interesting email last week about possible claims against a neighboring property owner who was taking steps in an apparent effort to lower the amount of compensation the agency would have to pay for the property.   I didn't get much in the way of details, but it did get me thinking about how (and why) this might occur, and what someone could do about it.

The first thought that occurred to me is why would a neighboring property owner want to cause the value of property to be lower?  It seems that in most circumstances, the last thing one owner would want is for a low value to be established ...

Ever since the Supreme Court issued its infamous 2005 Kelo decision, people have been anxiously awaiting the Court's next opportunity to weigh in on the extent of the government's eminent domain authority and, in particular, the limits (if any) created by the "public use" requirement. 

One of the cases that has been watched closely involves efforts to expand Columbia University in New York.  In Tuck-It-Away, Inc. v. New York State Urban Development Corporation, dba Empire State Development Corporation, the New York State Urban Development Corporation sought to condemn ...

The City of Rancho Cordova's Redevelopment Agency has been working to implement plans to eliminate blighted conditions along Folsom Boulevard.  As part of those efforts, the RDA filed an eminent domain action to acquire a 9-acre site owned by Lily Company.

Lily Company challenged the RDA's right to take on numerous grounds, including lack of proper blight findings and allegations that the RDA was colluding with the Los Rios Community College District.  We initially reported on the case in an August post, Rancho Cordova Eminent Domain Case Involves Allegations of Contractual ...

In an all-too-familiar tale these days, a redevelopment agency is seeking to acquire property as part of its efforts to alleviate blighted conditions in the city, and owners are reacting strongly to the agency's plans to utilize the power of eminent domain where owners are reluctant to sell. 

According to a November 5 article in the Signal Tribune, "Property owners condemn Signal Hill RDA’s use of eminent domain," the situation in Signal Hill pushes all the buttons on both sides of the issue:

  1. The redevelopment agency touts numerous successful projects, including converting ...

West Oakland has some notoriously tough neighborhoods, including the large ACORN project area where Black Panther co-founder Huey Newton was killed and an area known unflatteringly as "Ghost Town."  Over the years, it has been the subject of some controversial public works projects, facilitated through extensive eminent domain.  This includes the West Oakland BART station, a major postal facility, and the ACORN housing project.  

An October 4 article in the Contra Costa Times by Brian Beveridge, "'Eminent domain' draws shudders in West Oakland" describes the ...

Posted in Right to Take

One of the most vexing aspects of eminent domain for many property and business owners is the fundamental fact that the owner does not get to decide whether to sell the property.  I cannot recall the number of initial client meetings I've had over the years that began with the client asking "How do I stop this from happening?"

In most cases, my clients are disappointed to hear my answer:  "You can't."  But this answer is overly simplified, because there are actually several grounds for preventing the government from condemning property. 

A recent post on the Biersdorf & Associates eminent ...

The California Court of Appeal issued an interesting unpublished decision yesterday addressing a number of eminent domain issues, ranging from right to take challenges, entitlement to goodwill, severance damages, and jury instructions.  The case, City of San Luis Obispo v. Hanson, garnered enough attention that several third parties filed Amicus briefs with the Court.

By way of background, the City of San Luis Obispo decided to realign a road partly in order to accommodate a newly approved Costco development.  The realignment required right-of-way acquisition from a property ...

The City of Glendale plans to vote tonight on a plan that would extend eminent domain authority in its central redevelopment area for an additional 12 years.  According to an August 10 article in the Glendale-News Press, "City Set to Extend Eminent Domain," the agency's eminent domain authority is currently set to expire next month. 

According to the Director of the Community Redevelopment & Housing Department, Philip Lanzafame, eminent domain is a key tool if redevelopment projects are to succeed:  "If you didn't have this, some property owners could hold the community hostage."

This ...

Posted in Right to Take

Five years ago today, the Supreme Court announced its decision in Kelo v. City of New London, triggering perhaps the most broad sweeping eminent domain reform effort in U.S. history, along with tremendous critical commentary -- including, as just one example, an August 2005 piece on Forbes.com titled Eminent Disaster.

Quite frankly, I'm a bit bored by the decision after five years (I can't begin to count the number of times I've explained the decision and what it means to clients, at seminars and conferences, and on this blog).  However, others are marking the occasion with ...

The City of Lodi held a special meeting of its City Council this week to talk about options for a revised Redevelopment Agency.  And, even though (1) the City has already enacted protections against using eminent domain for redevelopment purposes, and (2) the proposal includes no eminent domain authority, it appears residents are still up in arms over the issue. 

According to a June 10 article by Maggie Creamer of the Lodi News-Sentinel, "Eminent domain a major concern at Lodi City Council's redevelopment meeting," the public appears more concerned with the threat of eminent domain ...

A recent post on the Biersdorf & Associates Eminent Domain Blog discussed criteria for hiring an eminent domain attorney.  While reading the post, I found myself agreeing with much of what they have to say, and since finding a qualified eminent domain attorney can be a tricky process, I thought I would pass it along.  That said, I disagree with some of what they say, so I also wanted to offer my own viewpoint.

Biersdorf breaks the inquiry down into three steps:

  1. "Experience";
  2. "Are They Looking Out for my Best Interest?"; and
  3. "Set Expectations."

Experience.  The experience ...

Posted in Right to Take

Last week was a fairly slow week for California eminent domain news, but I came across an article about a case that seems interesting enough to warrant a brief discussion, even if it has no direct application in California. 

Fronteer Gold, apparently a Canadian-owned company with a division formed under Delaware law, is seeking to condemn property in Nevada to help implement its plans for the Long Canyon gold mine

You might wonder how a private company, under Canadian ownership, can condemn property from private owners in Nevada.  Apparently, Nevada law contains a provision that ...

Posted in Right to Take

Next week, I'm speaking at the IRWA Chapter 67 Spring Seminar, which is focused on renewable energy issues.   So it was pretty timely when I came across an article this week involving efforts in Wyoming to curtail eminent domain power to address that state's push for increased renewable energy. 

According to a Casper Star-Tribune article by Dustin Bleizeffer, Wind boom inspires another look at state's eminent domain laws: Crossing private property, Wyoming has seen a wave of efforts to use eminent domain to acquire right of way for "collector lines," used to connect wind turbines to ...

Posted in Right to Take

Several years ago, the Elsinore Valley Municipal Water District filed a "friendly" eminent domain action to acquire a portion of an unimproved "paper" street from the City of Lake Elsinore.  The property was to be used to construct a water pumping station to serve a nearby development, and the City had no objection.  The water district took possession, and began construction of the pumping station.  So far, this seems like a non-story, right?

Well, to the water district's surprise, a nearby property owner appeared in the action and challenged the water district's ...

Posted in Right to Take

I'm a California eminent domain attorney.  I work in Orange County, Los Angeles County, Riverside County, San Bernardino County, etc.  I don't work in Utah.  I'm not even licensed in Utah.  Why, then, would I bother to blog about what is going on with eminent domain in Utah?

Quite frankly, because it amuses me.  The Utah Senate has now approved a law that authorizes the state to condemn property from the federal government.  You may wonder how can a state give itself the power to condemn property from the federal government.  The answer:  it probably can't --and Utah knows it.  

According to a ...

Marc Scribner of the Competitive Enterprise Institute published this week an article about the economics of eminent domain for economic development (i.e., for redevelopment purposes) entitled "This Land Ain’t your Land; this Land Is my Land."  I found the piece interesting, despite the fact that it seemed the author started from the conclusion "eminent domain is bad" and worked backwards crafting an analysis to get there. 

Ultimately, however, Mr. Scribner does provide some interesting insight.  He does not simply come out and say eminent domain for economic development is ...

Posted in Right to Take

In December, we reported on Sierra Madre's decision to allow voters to decide whether the City should possess the power to condemn property for redevelopment purposes.  On April 13, 2010, voters will decide the issue by ratifying or rejecting City Ordinance 1304, but for now, the measure has triggered some colorful debate. 

On February 27, Susan Henderson offered a Mountain View News article "Eminent Domain Measure -- Yes or No?"  She purports to analyze the measure in the broader context of recent eminent-domain-reform efforts, including California's Proposition 99, passed in ...

The City of Placentia has a large redevelopment area, and ambitious plans to redevelop an industrial neighborhood in south Placentia.  But the City has responded to the outrage over eminent domain and, in particular, eminent domain for redevelopment purposes.  The City apparently has no power to condemn property for private redevelopment. 

Yet, this lack of authority has not stopped some property owners in the redevelopment area from complaining that the "threat" of eminent domain has decimated their property's value.  According to a February 17 Orange County Register article by ...

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 ...

Posted in Right to Take

Yesterday, Professor Gideon Kanner, a well-known eminent domain scholar, wrote a critique of my post about Avatar on his "Gideon's Trumpet" blog.  It is an interesting response, in that it spans two full pages of printed text, and his fundamental point seems to be that he agrees with my premise that Avatar is not a film about eminent domain.  

How, then, does he spend two pages responding to my January 26 post, "Is Avatar Really a Political Commentary on Eminent Domain Abuse?"  Well, he begins by "trumpeting" the fact that he writes from an "unabashedly property-owner oriented" ...

Posted in Right to Take

A few weeks ago, my wife and I went to see Avatar.  With two young kids, we rarely see movies in the theaters, and we picked this one based on its advertised special effects, not any belief that it was the "best" movie among our choices.  

As I watched, I never really thought of it as an expression of outrage over eminent domain abuse.  Looking around the Internet, however, the movie seems to have been picked up by eminent domain reformists as a big budget example of eminent domain gone bad.  But is it, really?  Let's look at some facts:

  1. The "acquisition" was being handled by a private company ...

The public outcry over eminent domain continues.  Claims of "eminent domain abuse" fill today's popular media; a January 21 article by Steve Cook, Eminent Domain is Alive and Well, claims 2 in 3 Americans oppose eminent domain. 

What so often gets lost in the shuffle is that most of the outrage focuses on a narrow aspect of eminent domain:  redevelopment efforts that involve condemning private property and transferring it to another private owner.   This is what sparked debate in the Kelo case, and it is making major headlines in New York, where the "Atlantic Yards" drama involves ...

Posted in Right to Take

2009 has come and gone.  With it, we moved one more year past 2005's Kelo decision -- and a lot closer to what those of us who have worked in eminent domain for many years consider "normal."  Massive eminent domain reform efforts seem -- for now -- to be a thing of the past.

The California Legislature passed no substantive changes to California's eminent domain law, and the closest we came to a marquee eminent domain case last year was probably the Marina Towers decision, which was much discussed, but does not represent any sweeping changes to California law.

Still, there were a few notable ...

The City of Rosemead has a vision of its future that transforms the city into "a small town in the heart of a metropolis."  That, according to San Gabriel Valley Tribune reporter Rebecca Kimitch, is the goal of the city's new strategic plan.  Ms. Kimitch's article, "Rosemead defines itself as small town in the big city," explains:

The to-do list is ambitious: landscape medians and plant trees along sidewalks; demolish dilapidated vacant buildings; develop new neighborhood parks; remove graffiti; expand community classes and develop a community computer lab; create a civic center at ...

One of the big eminent domain stories of the last few weeks involved the oral argument at the U.S. Supreme Court in the Florida beach case.  That case involves whether a government program to add sand to parts of the Florida coastline, creating new public beaches in front of private property that had been beach front constitutes a taking.  For more information about that case, see my December 15 article, "Erosion Control, or Coney Island South?" published in the Los Angeles Daily Journal. 

Now, two other water-related takings issues are making news.  The first, as reported December 14 by ...

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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