Just a few months ago, the California Court of Appeal handed down a significant decision in Property Reserve v. Superior Court which nearly eviscerated public agencies' ability to make use of the statutory "right of entry" procedure to gain access to private property to conduct any significant investigations and testing. The Court held that any notable physical intrusion onto private property constituted a taking, meaning the public agency needed to proceed with an eminent domain proceeding. The decision caused an uproar among public agencies across the state. Well, pump the brakes: the California Supreme Court just decided to review the case.
The Court will decide the following issues:
- Do the geological testing activities proposed by the public agency (in this case, the Department of Water Resources) constitute a taking?
- Do the environmental testing activities (soil borings, endangered species testing, etc.) constitute a taking?
- If so, do the precondemnation entry statutes (Code Civ. Proc., §§ 1245.010-1245.060) provide a constitutionally valid eminent domain proceeding for the taking?
What does this all mean? Well, for now, the Property Reserve case is no longer the law (meaning it cannot be cited as precedent for the time being). Once the Supreme Court issues its decision, we'll know a lot more about what public agencies can and cannot do with respect to pre condemnation investigation and testing. Perhaps the Court will side with public agencies, concluding that such actions do not rise to the level of a taking, or that the right of entry statute afford sufficient protections when agencies undertake investigation and testing. Or, perhaps the Court will side with property owners, concluding that any invasion onto private property must afford owners with the necessary protections of just compensation and the right to a jury trial. Or maybe we'll get some more bright lines on just what will and what will not be allowed.
For the time being, agencies arguably can go back to business as usual, using the right of entry statutes for early testing and investigation. But it's still risky business: any sophisticated property owner is still going to make the same arguments the owners made in the Property Reserve case, or at least argue that any trial court cannot allow for such activities until the Supreme Court issues its decision.
Brad Kuhn, Chair of Nossaman's Eminent Domain & Valuation Group, guides property owners, developers, businesses, utilities, and public agencies through complex real estate development and infrastructure projects – ...
California Eminent Domain Report is a one-stop resource for everything new and noteworthy in eminent domain. We cover all aspects of eminent domain, 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 eminent domain conferences and seminars in the Western United States.
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