This past week I had the opportunity to attend the International Right of Way Association’s (IRWA) Region 1 Fall Forum and Symposium in San Diego, California. On Friday, Brad Kuhn and I presented an update on recent federal and state cases impacting takings, land use and development in California. On Saturday, I was an attendee at the Fall Forum where IRWA professionals throughout Region 1 (California, Nevada, and Arizona) shared updates on the status of the industry in their area.
It became notable that many IRWA professionals are interested in learning more about the big picture process of right of way and how the various components (environmental, planning, acquisition, eminent domain, etc.) all fit together. As such, I wanted to provide a 10,000 foot overview of the right of way process, with a particular emphasis on thinking about how each phase impacts subsequent components of the right of way process.
The environmental review (CEQA or NEPA) process for a project depends on the scope of the project, potential exemptions, existing permits, and funding sources. In California, if there are discretionary permit approvals necessary for a project, then CEQA compliance before property acquisition and project construction may be required. The environmental analysis needs to cover all potential acquisitions and/or disturbance areas.
It is important to remember that acquiring property before all environmental approvals are complete could result in a challenge to the agency’s project based on the argument that there was a pre-commitment to a particular project design alternative. Further, if an eminent domain action is filed before environmental approvals, a right to take challenge could be raised.
Even though environmental approval is required before acquisition, certain early acquisition activities are permissible. Activities such as surveying and environmental testing are permissible.
In the project planning phase, the first step is often coordination. This means identifying interest holders within the project path and acquisition areas that will ultimately need to be coordinated with, such as governmental agencies, utility companies, neighborhood groups, and private property owners. Identifying potential interest holders early prevents surprises down the road and allows a large lead time for amicable negotiations and coordination.
The planning stage also typically involves access to the applicable properties. Per California statute, licensed surveys are permitted to access property to conduct land surveying activities. This is permissible without property owner permission or court order, provided statutory requirements are met. If other precondemnation activities (photographs, studies, surveys, examination, tests, soundings, borings, samplings, appraisals, etc.) are necessary, access to the properties for such activities must be either with property owner consent or through a court order.
There is often a question of when planning activities can expose an agency to liability for precondemnation damages. The basic rule is that there is no liability for general planning activities. For recovery of precondemnation damages to occur, the activities of the agency must have gone beyond general planning and involved an unreasonable delay after an announcement of intent to condemn or other unreasonable conduct prior to condemnation.
Engineering / Design
In the engineering and design phase, it is important to identify right of way needs, establish a reliable right of way budget, and to create a realistic project schedule. When identifying right of way needs, it is important to consider that small project changes could save millions (i.e., shifting project alignment by a few feet to avoid stepping foot on a particular property). It is also important to ensure that all necessary rights are identified (i.e., the length and timing of temporary easements and access easements).
The initial appraisal serves a dual purpose. It supports the offer of just compensation and it supports the deposit of probable compensation necessary to obtain an order for prejudgment possession.
A strong appraisal will consider severance damages, use recent comparable sales data, applies proper definitions, assesses temporary impacts, and includes appropriate due diligence. A strong appraisal has many benefits. It creates rapport with property owners, builds confidence in the process, increases the likelihood of offers being accepted, reduces litigation, and reduces the likelihood of future challenges to the adequacy of the deposit or a prejudgment possession motion.
Offer / Negotiation
Armed with the appraisal, the offer and negotiation phase is where right of way consultants will attempt to voluntarily acquire necessary property (though the groundwork for voluntary acquisitions often starts much earlier). The offer must meet certain statutory requirements and include certain information. As for negotiations, the agency should make every reasonable effort to expeditiously acquire property by negotiation.
Best practices for the offer and negotiation include providing an owner with sufficient information to explain the project, simplifying contracts/purchase documents, and accepting reasonable information provided by an owner (and revising the appraisal / offer if warranted). The negotiation phase can also consider the use of possession and use agreements and other non-monetary concessions important to property owners.
Resolution of Necessity
If property cannot be voluntarily acquired, it will need to proceed to a Resolution of Necessity hearing before the agency’s board. A resolution of necessity is a formal decision by a public entity (note: investor-owned utilities are not public entities and are not required to adopt a Resolution of Necessity) to use eminent domain to acquire property.
There are statutory requirements pertaining to the notice of hearing and the contents of the resolution that need to be strictly followed. The issue of compensation is not before the governing body of the public entity.
Once an agency has adopted a Resolution of Necessity authorizing the condemnation of property, the land acquisition is turned over to the eminent domain process. A Complaint in Eminent Domain will be filed to commence the court action. In some instances, an agency may face right to take challenges. Also in the process, agencies will often need prejudgment possession so that they can commence project construction. This is a mechanism by which the court will grant early access to property, even though the issues of just compensation and actual title transfer have not yet been completed. Next, the parties will undergo discovery and the exchange of appraisals as to the valuation issues. At this stage, it is often beneficial for the parties to engage in mediation to attempt to find a mutual resolution to the eminent domain action. If that is not successful, the matter will proceed to a jury trial on just compensation (there could possibly first be a bench trial on any lingering right to take issues). After just compensation has been determined, there will be a judgment and a Final Order of Condemnation. Title to the property will not transfer to the agency until the Final Order of Condemnation is recorded. Once title transfers, the land acquisition process is typically complete.
This is merely a high-level overview of the right of way process and each component. The most successful projects (particularly in terms of coming in within budget and on schedule) are those where all of the right of way professionals have at least a basic understanding of the other parts of the process and can work together to deliver necessary infrastructure projects.
If your organization is looking for more in-depth training, the Eminent Domain and Valuation practice group at Nossaman is always happy to work with you on creating a presentation to your organization. Just let us know!
Jillian Friess Leivas focuses her practice on eminent domain laws and regulations. She has experience with the right-of-way process, from precondemnation planning activities through to acquisition. She prepares and argues ...
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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