We are pleased to provide the next installment of our video series from Nossaman’s 2019 Eminent Domain Seminars. In this segment, Eminent Domain & Valuation Partner Rick Rayl discusses timing and preparation of Notices of Possession and other preliminary steps in the filing of a condemnation action.
Welcome to the first installment of our video series from Nossaman’s 2019 Eminent Domain Seminars. In this segment, Nossaman Partner Rick Rayl discusses the initial appraisal process and benefits of a strong appraisal.
Right of Way Certification is a key project milestone; not only does it mean a project is ready for advertising but obtaining certification by a certain date is often a prerequisite for funding. Tying certification to dollars means it’s crucial that agencies acquire property and/or obtain orders for possession in a timely manner. As we’ve discussed here before, this can mean filing an eminent domain action while still negotiating with property owners, something many agency boards are reluctant to do.
[gallery columns="1" ids="3370"]
The latest example of the perils of ...
As we have reported in the past, public agencies are often faced with deadlines to secure possession of necessary right of way and ensure project funding. Given the amount of time it takes to secure possession through the court process, agencies must proceed with condemnation actions even where they need additional time to negotiate with property owners. Delaying the condemnation action for several additional months, while likely to lead to a settlement, ultimately places the project at risk if no deal is reached and thereby forces the agency's hand. This is exactly what ...
Following the 2005 Kelo decision, California enacted a number of modest eminent domain reforms. For eminent domain attorneys, the most significant changes arguably came in the procedures for obtaining prejudgment possession. This can be a major issue on large public improvement projects, as construction schedules and funding commitments are often tied to the date on which the condemning agency secures possession of the property needed for the project.
The new laws both (1) shift the balance of power somewhat away from the agency and towards the property owner, and (2) extend the ...
The California Department of Transportation (Caltrans) and the owner of Silveira Ranch are involved in an interesting valuation dispute stemming from Caltrans' acquisition of part of the ranchland needed for Highway 101 improvements. According to an article in the Marin Independent Journal, Judge gives state a nod in Silveira ranch eminent domain case, the parties disagree on the property's highest and best use, and as a result, they are widely off on their valuation opinions. Caltrans has offered the owner $1.8 million for the acquisition, while the owner is demanding $6 ...
California continues to move forward with more infrastructure improvement projects. According to an article in the Daily Republic, Agency starts eminent domain proceedings for I-80/680 project, the Solano Transportation Authority and the California Department of Transportation (Caltrans) are embarking on a $100 million-plus project to improve traffic flow near the Interstates 80 and 680 interchange. The project includes widening the freeway and constructing new on-ramps at the Green Valley Road interchange.
In order to move forward with project construction ...
Ever since we started this blog, one of the big topics we've touched on repeatedly deals with public agencies running into issues when trying to secure possession of property for right of way projects. Whether it's due to project funding constraints, federal oversight demands, construction contract deadlines, project timing requirements, or difficulties dealing with impacted property and business owners, agencies are routinely pressed with stressful deadlines to start building their projects. Would you like to know what pitfalls to look out for and how to avoid them? ...
The International Right of Way Association's (IRWA) International Education Conference in Seattle has just wrapped up, and boy was it a great event. Over 1,200 right of way professionals from across the United States and Canada (along with some visitors from Japan, Uganda, Saudi Arabia, Thailand, and the UK) all in one location for four days. What could be better? If you weren't able to make it, let me tell you that Alaska and Canada -- two chapters vying for hosting the 2017 event -- sure know how to have a good time.
As I travel home on my flight back to Orange County ...
According to a Turlock Journal article, "TID moves ahead with eminent domain," the Turlock Irrigation District approved the adoption of a resolution of necessity in order to move forward with eminent domain for the Hughson/Grayson 115 kv transmission line project.
As expected, impacted property owners are not satisfied with the agency's appraised value. The article reports that residents are in the process of obtaining their own appraisals, and have requested a 30 day extension prior to the commencement of eminent domain proceedings. (As a public agency, the irrigation district ...
The site selection process for a new school is typically a difficult one, as large acreage is usually needed in the middle of a populated area. When these two factors are combined, eminent domain often follows.
According to a recent article in the Fresno Bee, "Fresno Unified moves ahead on southeast elementary school," this is precisely the situation faced by the Fresno Unified School District as it proceeds with building its new $20 million southeast elementary school. The District needs 8.43 acres, requiring the acquisition of 20 different parcels from 17 different owners. In ...
As we reported in an update yesterday, San Luis Obispo County adopted resolutions of necessity to condemn portions of three parcels needed for Nipomo’s Willow Road interchange project. According to an April 21 Santa Maria Times article by April Charlton, "Board OKs use of eminent domain," the County is still negotiating with the owners, but was forced to start the eminent domain process now, or its risks losing key project funding:
[T]he county is required to show the state that the project is ready to proceed by the end of June to obtain millions of dollars in transportation funds ...
After a flurry of post-Kelo activity, cries for eminent domain reform seem to have quieted in California in the past couple of years. Now, public utility companies are seeking to step into the calm in an effort to roll back some of the reforms that did occur.
One of the recent changes to California eminent domain law involves the procedures for obtaining prejudgment possession. Before Kelo, agencies could almost guarantee possession quickly. In fact, they could obtain orders for possession ex parte, meaning they didn't even have to provide owners with notice that they were seeking possession. Under those rules, by the time an owner learned that an eminent domain case had been filed, the order for possession was often already signed.
In 2006, the California Legislature passed SB 1210, which changed the prejudgment possession process. In particular, it
- Extended dramatically the time it takes to get possession (it now takes more than 120 days for occupied property);
- Ensured property owners would receive ample notice before a court considered a motion for possession; and
- Created a new balancing test that required courts to balance hardships in determining whether or not to grant an agency prejudgment possession.
Public utility companies are now looking for a partial exemption from these new rules. Assembly Bill 2162, introduced February 18, 2010, by Assemblyman Niello, would allow public utilities to obtain prejudgment possession orders ex parte when immediate possession will not displace or unreasonably affect any person in lawful possession of the property’s surface estate.
AB 2162 had been set for a hearing before the Utilities & Commerce Committee on March 22, but on March 17, the Bill was amended, and yesterday it was referred back to the Committee. It is not yet clear how much momentum the Bill has, and no hearing date has been set. We'll let you know what happens.
I will be speaking February 11 at the Sacramento IRWA Chapter's lunch meeting (Chapter 27). My presentation will be about avoiding pitfalls under the new eminent domain prejudgment possession rules. This topic has received considerable attention over the past couple of years, and will undoubtedly be the focus of more attention over the next few years as appellate decisions involving the new rules start to appear.
The meeting details are as follows:
110 Diamond Creek Place
Roseville, CA 95747
Board Meeting: 10:30 a.m.
Registration/ Meet & ...
We have previously reported on Tulare County's efforts to acquire right of way for its Road 108 widening and its Road 80 widening. Now, the County is considering condemning four additional parcels for the Road 108 project.
In a February 1 article in the Visalia Times Delta, Eminent domain on county board's agenda, Valerie Gibbons reports that the County will decide tomorrow whether to file four more eminent domain actions, which would bring the recent total to 25. Ms. Gibbons reports that the County's apparent rush to proceed has "had residents up in arms in past meetings."
But the County ...
Yesterday's IRWA Chapter 1 seminar in Los Angeles was a great success, with an outstanding panel of speakers. The morning started with an informative presentation by Dave Guder of Southern California Edison about the Tehachapi Renewable Transmission Project and renewable energy sources in general.
The liveliest discussion, however, centered around a narrow issue that triggered some surprisingly animated responses. The issue involved a condemning agency's use of one appraiser for the initial eminent domain offer and deposit of probable compensation, and another appraiser as the trial appraiser. More specifically, the discussion focused on whether agencies should be allowed to use this tactic, and whether use of a second appraiser should insulate the agency's first appraiser/appraisal from discovery -- and, ultimately, from admission at the trial on compensation.
While both "sides" articulated good points, in my opinion, the discussion missed a couple of important things. First, from an agency perspective, current "best practices" involve using a different appraiser for the trial than the agency used for the offer and deposit in almost every case. The law allows this, and doing so renders the initial appraisal inadmissible at the trial on compensation.
No reason exists for an agency to expose its initial appraisal to cross examination, when the trial appraisal will almost always be different. The mere passage of time, along with the litigation discovery process, will generate information that warrants changes in the appraisal, and a talented landowner lawyer will be able to exploit any such changes at trial, even if the changes are easily explainable -- and even if the changes do not change the appraiser's ultimate conclusion of value. The agency should not put itself in the position of defending both its trial appraisal and an out of date, initial appraisal.
Second, regardless of the agency's plans for its trial appraisal, it is not at all clear that the initial appraisal can be insulated from discovery. The new rules on prejudgment possession [pdf] create the very real possibility of judicial scrutiny of the offer process which, by necessity, may result in scrutiny of the agency's initial appraisal.
Thus, while that early appraisal can be rendered inadmissible in the trial on compensation issues by changing appraisers, appraisers would be well served to keep in mind that even those preliminary appraisals may be scrutinized if the landowner raises right-to-take challenges or fights an order of possession. This risk that a poor initial appraisal may impact possession should provide agencies with ample incentive to do what they can to "get it right" the first time, even if they plan to switch to a different appraiser for trial.
I attended the IRWA Chapter 1 (Los Angeles chapeter) lunch meeting today, and listened to my partner, Rick Friess, speak about the Pitfalls of Prejudgment Possession [PDF]. The most lively part of the discussion centered on the requirement that condemning agencies offer the property owner $5,000 to obtain his or her own appraisal, and whether the agencies can condition that money on anything. There was clear agreement on the fact that to date, no case has interpreted the requirement, and that there is at least some ambiguity about what, if any, conditions may be imposed.
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.