Government agencies often require developers of large projects to build the necessary infrastructure to accommodate those proposed projects. Examples include building a new roadway to reach the project, widening an existing roadway due to the project's adding extra trips to the daily traffic, and installing improvements for utilities and flood control, among other things. But how do developers acquire the right-of-way when the necessary property is privately owned?
The proposed Merriam Mountains residential development project in north Escondido is a perfect example of how the above scenario typically plays out. In Morgan Cook's November 9 North County Times article, "ESCONDIDO: County could use eminent domain for Merriam Mountains development project," Cook explains that the Merriam Mountains 2,700-unit proposed residential development is conditioned upon the developer's widening Deer Springs Road from two to four lanes for a two-and-a-half mile stretch between Twin Oaks Valley Road and the I-15.
Since this widening requires the acquisition of private property, the County of San Diego may exercise its power of eminent domain on behalf of the developer, NNP Stonegate-Merriam, in order to acquire the land from the necessary property owners. So what are the impacts of the proposed Deer Springs Road widening? According to a study completed by one property owner, the widening will require the acquisition of 17.55 acres of private property.
Mr. Cook's article explains that County policy requires the satisfaction of five criteria before the use of eminent domain may be exercised on behalf of a developer:
- The developer must have made reasonable offers based on a fair market value appraisal report and made every reasonable effort to acquire the property rights;
- Alternative locations for the public project must have been considered and found impractical;
- County staff must have deemed it unwise to abandon the public project altogether;
- The developer must have agreed to pay all the county's costs, including land purchases and eminent domain proceedings; and
- The Board of Supervisors must have mapped out the land to be acquired.
Should government agencies be able to exercise the power of eminent domain on behalf of private developers? On the one hand, some argue that it is unfair to use eminent domain to accommodate the proposed development of a private developer. On the other hand, it is the government that is imposing upon developers the requirements to build the infrastructure improvements. If the agencies that impose the requirements do not provide a means of implementing those requirements, developers may be left with no way to develop their properties, regardless of a project's overall merit.
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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