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 full-blown eminent domain action. When that process was challenged in Property Reserve v. Superior Court, last year the California Supreme Court held that the right of entry statute was constitutional, with the exception of needing to include a right to a jury trial on compensation (which the Court "reformed" on its own initiative to require such a trial).
The Court's holding created an inconsistency between what the statute says on its face and what the Court reformed it to mean. As a result of this situation, and to avoid confusion and error, the California Law Revision Commission tentatively recommends that the precondemnation activities / right of entry statute be revised to conform to the reformed meaning established by the Court, and is seeking public comment accordingly. The tentative recommendation is available on the California Law Revision Commission's website. Other than minor tweaks, the Commission's proposed revision includes adding a sentence to Code of Civil Procedure section 1245.060, subdivision (c), stating that
In a proceeding under this subdivision, the owner has the option of obtaining a jury trial on damages.
The Commission often substantially revises its recommendations as a result of public comment. If anyone is interested in commenting on the Commission's recommendation, to receive timely consideration, comments should be submitted by August 8, 2017.
Brad Kuhn serves as Chair of Nossaman's Eminent Domain & Valuation Group. Brad is a real estate and business litigation attorney, with a particular emphasis in the transportation, energy/gas, water, land-use development, and ...
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