Fisher & Talwar: Eminent Domain and Real Estate

Compensable Property in a Condemnation Case

2011-11-30T14:55:00.000-08:00

The Takings Clause of the Fifth Amendment does not distinguish between real and personal property in requiring the government to compensate private individuals and entities for the condemnation of their property for a public use. Thus, the extent of property that is actually taken, and compensable, in a condemnation action has become an issue in many cases.

Recently in the news, after being condemned for road improvement, a Virginia Taco Bell argued for compensation for numerous items used in the restaurant, including ovens, refrigerators, cash registers, and even pans and frying baskets, asserting that pulling the items out of the restaurant and trying to sell them results in pennies on the dollar, and that the items were intended to remain on the property for the life of the business. Usually, condemning authorities refuse to pay for anything that can be moved, but in this case, the Virginia Supreme Court found Taco Bell's evidence sufficient to allow a jury to decide whether the items were compensable fixtures or non-compensable personalty for purposes of condemnation. (Taco Bell of America, Inc. v. Commonwealth Transportation Commissioner of Virginia)

In California, just compensation for a taking includes the loss of any inventory of personal property caused by the condemnation. The property owner may be entitled to the property's retail value if the property is unique and not readily replaceable or wholesale value if the property is non-unique, fungible, and readily replaceable. The loss of business inventory or personal property must result from the condemnatory act itself, and not the personal circumstances of the property owner.

As explained by the California Court of Appeals for the Fourth Circuit, "the goal of the eminent domain trial [is] 'to determine just compensation,' to wit, to put [the condemnee] in 'as good a position' as if its business inventory had 'not been taken.' However, [the condemnee is] only 'entitled to be reimbursed for the actual value of what [it] lost--no more and no less'" (People ex rel. Dept. of Transportation v. Clauser/Wells Partnership). This comment shows that California courts are willing to consider inventory and personal property when determining just compensation in a condemnation case; however, the question will always be a close one, as courts do not want to over compensate property owners. An experienced eminent domain lawyer can assess the extent of compensable property in a condemnation action.

Southern California Eminent Domain Attorneys

If the exercise of eminent domain authority threatens your property, make sure you know your rights. In Southern California, contact the Los Angeles eminent domain attorneys at Fisher & Talwar at (213) 891-0777 to learn more about condemnation law.

A Public Use, but is it Necessary?

2011-09-29T15:30:00.000-07:00

The Fifth Amendment to the U.S. Constitution states that private property shall not be taken for public use without just compensation. When challenging a government condemnation, however, there is more to litigate than just whether the taking is for a public use and whether the compensation is just. The law has evolved corollaries to the public use requirement, namely that the taking is required by the public interest, and the property taken is necessary to fulfill that purpose. This last matter - the public necessity test - is beginning to look like fruitful ground to challenge eminent domain actions.

Traditionally, the issue of public necessity has not been heavily litigated in the courts, which have been reluctant to replace another government body's decision-making with their own. But since the Supreme Court's broad definition of what constitutes a public use and a project in the public interest in Kelo v. City of New London, property owners challenging a government taking have been looking to the necessity test as a stand against the taking. While a court may uphold the idea behind a government project, how much property does the government need to take to fulfill its mission, and which property in particular?

A California Court of Appeals addressed itself to this question last year, in the case of City of San Luis Obispo v. Hanson. While the City project in this case (a road realignment) clearly benefited a private entity (Costco), the court also found that the city had debated the issue of the road realignment for 20 years and there was plenty of evidence to support that the road was needed by the public, without regard to the Costco development. Even though the landowner lost on appeal, it is significant that this issue played a major role in the appeal. Look for more eminent domain challenges in the future to raise the public necessity issue and to demand proof by the taking authority that its actions are necessary to accomplish its stated public purpose. For advice and representation in a condemnation matter in Southern California, contact the Los Angeles eminent domain lawyers at Fisher & Talwar at (213) 891-0777.

Montana Grants Eminent Domain Authority to Canadian Corporation Selling Power to California

2011-07-29T15:04:00.000-07:00

Eminent domain is a hot topic in Montana right now, and the outcome of several cases is being closely watched here in California. The Montana State Legislature recently passed HB198 to confirm that power line developers and other utility companies have eminent domain authority. The power companies, meanwhile, thought they had it all along.

The reason for the legislation is the Montana-Alberta Tie Line project (MATL), which is the construction of a high-voltage power transmission line designed to carry electricity generated by wind power in the state to Idaho and California. The company behind the project wants to be able to condemn property in the path of the new line.

This issue is being fought in the courts as well as the legislature and the court of public opinion. A union and an environmental group are on the side of eminent domain for this project, due to job creation and renewable energy, respectively. Against the idea are ranchers and other landowners, who want to have a say on where the lines are placed and to receive just compensation for the taking. Others fail to see the benefit of a foreign (Canadian) corporation taking Montana land to service customers in other states.

The company building the MATL has already filed 55 eminent domain cases to date against landowners who have refused to sell their property for the utility project. Landowners, meanwhile, have filed a lawsuit claiming that HB 198 is illegal under several constitutional grounds. One claim is that the law discriminates against property owners in rural areas. The Montana legislature passed a law in 2007 prohibiting the taking of private property for economic reasons, in response to the U.S. Supreme Court's landmark ruling in Kelo v. City of New London. That law, however, only applied to property in urban areas. The MATL project concerns a power utility, but the purpose is to sell power out of state. Is the eminent domain authority exercised in the MATL project a public use or an economic one?

Southern California Eminent Domain Attorneys

Texas Tightens Government's Eminent Domain Authority

2011-05-31T14:31:00.000-07:00

In May of 2011 Texas Governor Rick Perry signed into law Senate Bill 18, ushering in significant changes to the state's eminent domain power.

The law requires the condemning authority to first make a reasonable, appraisal-based offer for a voluntary sale of the land before starting condemnation proceedings. In addition, the landowner in certain situations can buy back the property at the government's purchase price if the land is still not used by the condemnor after 10 years. Finally, the law makes several changes reinforcing the requirement that eminent domain only be made for a public use and not for the benefit of any private entity. The condemning authority is required to specifically identify the public purpose, and to record a vote on the project before proceeding.

At the same time, the law grants eminent domain authority to certain entities which could not previously exercise it, leading some to claim that Senate Bill 18 inflicts more harm to private property rights rather than offering protections. A similar measure was passed in 2007 but vetoed by Governor Perry at the time.

Meanwhile, Back in California…

Eminent domain reform continues to be included in Governor Jerry Brown's plans to balance the California state budget. Through various budget cuts and spending measures, the state's formidable $26 Billion shortfall has been trimmed to $15 Billion, and it looks like an unexpected increase in recent tax receipts will bring that figure down by another $2 Billion or more.

Governor Brown's budget has called for the elimination of the state's 425 Redevelopment Agencies, entities which exercise eminent domain for economic redevelopment, a purpose which has been considered an allowable "public use" since the U.S. Supreme Court's decision in Kelo v. City of New London in 2005. Eliminating the Redevelopment Agencies would cut another $1.7 Billion from the budget, but this move has faced strong opposition from a large bloc of lawmakers and the business-oriented lobbying groups pressuring them against such a change. In the meantime, your property may be subject to a government taking for the benefit of commercial developers. If you find yourself in such a situation, contact the Los Angeles eminent domain attorneys at Fisher & Talwar at (213) 891-0777.

Redevelopment Agencies Alive and Kicking Despite Governor’s Plan

2011-03-31T16:04:00.000-07:00

California Governor Jerry Brown put forward a plan to resolve California's $26 Billion budget deficit through a combination of spending cuts and extensions of tax increases currently in place. $12 Billion in spending cuts have already been passed into law, but budgets talks have stalled on the tax issue, and a piece of the Governor's plan - to eliminate the state's 425 redevelopment agencies and enterprise zones and about $1.7 Billion of budget deficit along with them - has met with strong, well-organized opposition that has kept the redevelopment agencies safe from the chopping block, at least for the time being.

Redevelopment agencies exercise eminent domain power to take private property in "blighted" areas and turn them over to developers for large scale construction projects and commercial uses. Although it may seem hard to understand how such takings meet the Constitutional requirement that eminent domain only be used for "public use," such has been the law of the land since the 2005 U.S. Supreme Court ruling in Kelo v. City of New London, finding that the benefits of economic growth are a sufficient "public use" under the Constitution.

The latest move has come from the California Redevelopment Association (CRA) and the California League of Cities, which have drafted an alternative proposal to the Governor's plan. This plan funnels money to school districts which otherwise lose tax dollars when a development project comes on-line through tax increment financing. This proposal may be politically appealing as it provides funding to public education, but the direct result for the property owner would be to allow the eminent domain power of the CRA to continue with business as usual. The CRA represents over 350 redevelopment agencies in the state, and along with the League of Cities is leading the charge against the Governor's plan to eliminate the agencies.

Even without the alternative proposal, CRA has so far been successful in keeping this piece of the Governor's plan from moving forward. If your property is being targeted with the government's power of eminent domain, contact the Los Angeles eminent domain attorneys at Fisher & Talwar at (213) 891-0777.

Major Wielder of Eminent Domain Power May Soon be Eliminated

2011-01-31T16:15:00.000-08:00

Governor Jerry Brown has a $25 Billion hole in the California budget to fill, which he proposes to accomplish through a combination of spending cuts and an extension of current temporary tax increases. A significant portion of the package includes eliminating the state's 425 redevelopment agencies and enterprise zones. The redevelopment agencies are a major player in the eminent domain arena, acquiring land through eminent domain and then developing the property for commercial and residential use.

Vocal opposition to the proposal is coming from a group of mayors from some of the state's largest cities, as well as the California Redevelopment Association (CRA). CRA is comprised of over 350 redevelopment agencies as well as more than 300 private sector companies as associate members including developers, banks, consultants and law firms involved in economic redevelopment.

CRA has mobilized against the Governor's proposal. At their website you can find a page of resources devoted to the issue, including press releases, calls to action, and even an hour-long webcast embedded on the page hosted by the CRA's Executive Director, General Counsel and chief lobbyist, urging their supporters to speak out against the Governor's proposal to members of the legislature.

The Governor's proposal to extend the temporary tax increases will have to be put before a vote of the people as a ballot measure. Legislative proposals such as the elimination of the redevelopment agencies will be addressed through the legislature. Although the state's senate and assembly can expect strong, organized opposition to the proposal, it remains to be seen whether job creation will win out over health care advocacy, or if every corner of the government will share in these painful cuts before the state's budget turns around.

For advice and representation from experienced Southern California eminent domain attorneys, contact Fisher & Talwar online or call us at (213) 891-0777.

World's Busiest Airport Could Grow Even Bigger

2010-11-30T09:45:00.000-08:00

Los Angeles International Airport (LAX), is the world's busiest origin and destination airport, and the sixth busiest in the world in total traffic. In October the airport, which is owned by the city of Los Angeles, put forth a modernization plan that could cause significant disruption to the Westchester business community, and require the city to exercise its power of eminent domain.

The expansion of a runway in the North Airfield would require the airport authority to seize and demolish a number of buildings in Westchester, which borders the airport to the north, to create a federally-required Runway Protection Zone (RPZ). This action could so disrupt the Westchester downtown business district that all 500 businesses in the area would have to move or shut down as a result.

Noise Annoys: Jets and the Concept of Inverse Condemnation

The purpose of the RPZ is to provide a clear area under the control of the airport operator, in order to prevent the construction of buildings and other potential hazards to aircraft taking off and landing on the runway. But besides an actual physical taking of property to create an RPZ, the creation or expansion of a runway could raise other eminent domain concerns.

Inverse condemnation is a type of government taking when conditions are created which effectively destroy the use or value of private property. In the case of airports, the tremendous noise created by jets taking off and landing can result in a "taking" of residential or commercial property near the runway.

In the past, attempts at airport expansion have been derailed due to protests by environmental groups and others. It remains to be seen whether opposition by the Westchester business community and others will coalesce to fight or stop the current proposed modernization plan. In the meantime, if your home or business falls prey to "progress," make sure that you are fairly compensated by the responsible government agency. If you are experiencing either an overt or constructive government taking, contact Fisher & Talwar online or call us at (213) 891-0777.

Imperial Beach Store Owner Embroiled in Eminent Domain Compensation Dispute

2010-09-30T11:07:00.000-07:00

Shakwi Bachoua, longtime merchant and owner of South Bay Drugs in Imperial Beach, California, is facing eviction via eminent domain proceedings. At a meeting on Wednesday, September 22, the Imperial Beach City Council voted to begin these proceedings via a Resolution of Necessity, a required first step for the local government to initiate the condemnation process, which can take up to six months.

The central issue is not whether Bachoua is being wrongfully evicted, but an atypical dilemma in which he may have lost his right to government compensation for the takeover. Both the U.S. and California Constitutions give governments the right to take private property without owner consent, but require "just compensation" to the owner for the condemnation.

Based on the advice of his former attorney, Bachoua opted to stop paying rent in October 2009, making him a holdover tenant with a current rent debt of $18,000. Bachoua claims this advice was based on an email from a city consultant who indicated that outstanding rent would be deducted from his compensation from the city (in this situation, considered "relocation benefits").

Imperial Beach officials disagreed, suing Bachoua for the unpaid rent while arguing that the consultant's email was not a binding contract. Bachoua prevailed in San Diego Superior Court, but the city is appealing that decision. An appellate victory by the city would likely be fatal to Bachoua's compensation rights, despite holding a lease on the property through April 2018.

Bachoua remains at the location, a partially vacant strip mall on Palm Avenue called Miracle Shopping Center, built during the 1960s. Since holding over, he has converted his pharmacy to a profitable liquor store. City officials have expressed a willingness to settle with Bachoua for the relocation, but claim they have not yet received a reasonable offer from him. The city plans on demolishing the strip mall to make way for a 45,300 square-foot shopping center.

For a recent report on this unusual eminent domain issue, see the San Diego Union-Tribune.

New York: Columbia University's Court Victory Means Campus Expansion Using Eminent Domain Will Go Forward

2010-07-22T15:40:00.000-07:00

Columbia University's $6.3 billion campus expansion plan for West Harlem will go forward thanks to a New York State Court of Appeals decision that came down in June. As the New York Times reports, the majority of the property needed for the expansion had already been acquired by the University, but the owners of four warehouses and two gas stations refused to sell their land and sued to prevent a government taking. The June decision gives the State of New York, through its Empire State Development Corporation, the right to take the private owners' land without their consent on behalf of Columbia University.

The law of eminent domain allows the state to take private land if the area is "blighted" and the taking is for a public purpose. In this case, Columbia wants to build a series of buildings for science, business, and the arts. In its ruling, the Court of Appeals held that deference must be given to the state's determination whether a locale is "blighted" and that condemnation on behalf of a university serves a public purpose.

Judge Robert S. Smith wrote a concurring opinion in which he agreed that the state has the power to decide what constitutes "blight." However, Judge Smith disagreed with the court's discussion of what constitutes a "civic purpose," which he said opens the door to any purported "school," even a tennis school, to have land taken on its behalf using the law of eminent domain.

The State of New York has stood by the expansion plan, including the private property takings, saying that it will "enhance the vitality of both the university and its neighboring west Harlem community, while meeting the long-term needs of its residents." Seven tenements are also situated in the intended expansion zone; although they are not subject to condemnation, the University says it hopes to move the residents to comparable apartments somewhere else.

If you are a property owner and a state is seeking to seize your property through eminent domain, consult an experienced eminent domain lawyer to ensure that your rights and interests are protected. If you need legal assistance or have a question regarding eminent domain, please contact one of our Los Angeles eminent domain lawyers at Fisher & Talwar today or call us at (213) 891-0777.

Inverse Condemnation Case Leaves California Farmers without Compensation

2010-05-26T13:34:00.000-07:00

In Adam Bros. Farming, Inc., v. County of Santa Barbara, the Ninth Circuit Court of Appeals found that Adam Bros. Farming and Iceberg Holdings, L.L.C. (collectively "Adam Bros.") were barred from seeking compensation in federal court on their claim of inverse condemnation. The Adam Bros. claim alleged that Santa Barbara County had temporarily taken its land without providing just compensation in violation of the Fifth Amendment. The court held that the matter was barred because it had already been decided by the California state courts.

In 1997, Adam Bros. purchased 268.5 acres of land, known as Rancho Meadows, in Santa Maria, California. At the time, Adam Bros. was unaware that 95 of those acres had previously been delineated as protected wetland. However, there was some disagreement as to whether or not the designated area was, in fact, wetland.

Between 1998 and 1999, Santa Barbara County went back and forth about whether or not Adam Bros. needed a grading permit to farm its land. In 2000, Adam Bros. sued the county in the Superior Court of California seeking damages and declaratory and injunctive relief for inverse condemnation and violations of the federal Equal Protection, Due Process, and Takings Clauses. Their complaint alleged that the wetland designation was fraudulent because it wasn't based on hydrological and soil tests, as required, and constituted a government taking.

In 2004, a jury found that Santa Barbara County's wetland delineation was improper and awarded compensatory damages of $5.4 million and punitive damages of $130,000. The Superior Court also issued injunctive and declaratory relief invalidating the county's wetland delineation. However, the jury's award of damages was reversed on appeal because Adam Bros. bought the property after the county had designated the acres of wetland.

In 2008, Adam Bros. again brought suit against the county, this time in federal court, alleging the property had been taken without just compensation. The judge dismissed the claim, holding that Adam Bros. had failed to pursue all the available administrative remedies. According to the court, Adam Bros. should have initiated an "inverse condemnation" proceeding to challenge the government taking. Inverse condemnation occurs whenever the government effectively takes, damages, or occupies a property without providing the property owner with just compensation. Because the county's designation of the Adam Bros. acres as wetland impaired the property's use and value as farmland, the court found that Adam Bros. should have initiated an inverse condemnation proceeding in state court.

As this case makes clear, inverse condemnation and eminent domain law can be highly complex. Recent case decisions have made it even more difficult for a property owner to pursue just compensation for a taken property. If your property has lost its use or value due to a government taking, please contact one of our experienced Los Angeles eminent domain lawyers at Fisher & Talwar or call us at (213) 891-0777.

Pasadena Considers Using Eminent Domain to Seize Historical Building

2010-03-31T10:25:00.000-07:00

Pasadena is considering using eminent domain to seize a historical building designed by famed architect Julia Morgan. The building, located at 78 Marengo Avenue, near City Hall, has been fenced, boarded up and abandoned for more than a decade. It was originally built in 1921, making it one of Pasadena’s earliest historical structures, and was used by the Young Woman’s Christian Organization (YWCA) as a social center and place for women to stay. The architect, Julia Morgan, is considered to be California’s first prominent female architect.

The building is currently owned by Trove Investments, which acquired the property in 1996 for $1.8 million. Trove has rejected multiple offers by the City of Pasadena to purchase the property. The last offer for the property by the city was $6 million, which was countered by Trove’s asking price of $12 million. The property has been in a continuing state of disrepair and has been vacant for years. Three years ago the owner had discussed the possibility of converting it into a luxury hotel, but plans to do so never materialized.

Buildings with historical value are subject to specific guidelines regarding the use of eminent domain. Since the building is starting to deteriorate, the city may have a strong case for acquiring it in order to restore it, but a less compelling argument in favor of eminent domain if they intend to tear it down and replace it with a new structure.

Pasadena Mayor Bill Bogaard hopes the threat of eminent domain will force Trove back to the negotiating table. Bogaard was quoted as saying, "In a project where there is the possibility of eminent domain, it results in a negotiated settlement."

Neighboring cities in the San Gabriel Valley have taken steps to fight the use of eminent domain. In 2007, the City of Arcadia passed Measure B, a city ordinance designed to stop the use of eminent domain by the city to seize local homes and businesses for economic development. In 2008, the City of Baldwin Park sought to seize as many as 200 homes and businesses as part of a redevelopment plan.

If you are a property owner and a city is seeking to seize your property through eminent domain, consult an experienced eminent domain lawyer to ensure that your rights and interests are protected. If you need legal assistance or have a question regarding eminent domain, please contact one of our Los Angeles eminent domain lawyers at Fisher & Talwar today or call us at (213) 891-0777.

New York Court Rules in Favor of Property Owners in Eminent Domain Case

2009-12-22T13:42:00.000-08:00

The New York Supreme Court, Appellate Division recently handed down a ruling that may directly question the breadth of the United States Supreme Court's landmark Kelo v. City of New London opinion. Under the Fifth Amendment, privately owned land can only be taken for public use. However, Kelo broadened that to include land used for a public benefit. In Kelo, the United States Supreme Court held that the city could use eminent domain to take a woman's home to build a parking garage at a pharmaceutical plant. The Court reasoned that obtaining more real estate tax dollars would constitute a public benefit.

In the recent Matter of Kaur v. New York State Urban Development Corp. decision, the court held that the Empire State Development Corporation (ESDC) could not take private land to sell to Columbia University. The ESDC is New York's governmental agency that encourages business development in the state. It was going to take the property and sell it to Columbia at a profit for use in a large university expansion project. The ESDC argued that the land at issue was blighted, which would make it subject to condemnation for urban renewal.

In a surprising decision, the New York court sided with the owners of the affected properties and said that a proposed expansion of a private university did not constitute a public use. The court also questioned the finding that the land was blighted and was concerned that there was a conflict of interest because the ESDC used the same real estate consultant Columbia had used for the blight study. Differentiating the case at hand from Kelo¸ the court held that unlike in Kelo, there was no existing plan for urban revitalization in the Manhattanville area. This decision will likely be appealed, and we will pay close attention to any developments that could impact property rights nationwide.

Eminent domain is a complex area of the law that requires a full understanding of the legal principles. Our attorneys are committed to staying apprised of any court decisions around the country that could one day impact your property rights in Los Angeles. If you are faced with the possibility of the condemnation of your property by a public entity, please contact one of our experienced and knowledgeable Los Angeles eminent domain lawyers at Fisher & Talwar or call us at (213) 891-0777.

Texas Passes Eminent Domain Reform That May Actually Protect Private Property Owners From Economic Development Takings

2009-11-05T08:12:00.000-08:00

Texas voters turned out (albeit in low numbers) on November 3^rd to overwhelmingly approve Proposition 11, a measure constitutionally restricting the eminent domain power of government to take private property from owner and give it to another private entity.

Proposition 11 states that any property taken by eminent domain must be owned, used and enjoyed by the public at large, by state or local government, or another agency granted eminent domain authority. The measure specifically prohibits a taking for the purpose of economic development or to enhance tax revenue. Further, the legislature in the future will need a two-thirds majority in order to grant the power of eminent domain to any agency.

State measures of a similar nature have rolled across the country since the 2005 U.S. Supreme Court decision of Kelo v. City of New London, in which the court upheld a city’s taking of private property in order to sell it for private development to improve the city’s economy. While the Fifth Amendment of the U.S. Constitution prohibits private property from being taken from the government except for “public use,” the high court in Kelo held that the benefits of economic growth are a public use sufficient to constitute a taking under the city’s eminent domain power.

California passed its own eminent domain reform in June 2008 with the passage of controversial Proposition 99, following the defeat of an earlier attempt (Proposition 90) in 2006. Proposition 99 prohibits government from taking private property from one owner in order to transfer it to a private person or business entity. However, the restriction only applies to owner-occupied residences that have been occupied for at least one year. Prop 99 does nothing to limit takings of rental properties, apartments, small businesses, churches, etc. Moreover, the restriction on owner-occupied residences itself contains many exceptions.

While Proposition 99 may offer some protections for homeowners, it leaves alone the power to take private property for economic development, unlike the Texas ballot measure. Developers and promoters of economic redevelopment often target small business owners in economically-depressed areas as opposed to residential areas. Redevelopment agencies continue to focus their authority on these areas which did not receive Prop 99 protection, and the specter of eminent domain continues to put enormous pressure on property owners to cooperate and sell “voluntarily,” rather than face government condemnation.

The provisions and loopholes of Proposition 99 are numerous and complex. If a redevelopment agency is seeking to acquire your property with the use or threat of eminent domain, you should speak with an experienced eminent domain lawyer to ensure that your rights and interests are protected. In the Los Angeles area, contact Fisher & Talwar at (213) 891-0777 to speak with one of our highly experienced eminent domain attorneys.

California Considers Seizing BeauRivage Property by Eminent Domain

2009-10-08T14:42:00.000-07:00

The California Transportation Commission (CTC), the National Park Service, and the Santa Monica Mountains Conservancy is seeking to obtain a part of the BeauRivage restaurant property, which is privately owned by Daniel Forge, through eminent domain. The reason for this is that the State is trying to facilitate the return of steelhead trout to Solstice Creek. Solstice Creek is approximately five feet to ten feet wide and located in the Santa Monica Mountains National Recreation Area, and Forge's restaurant is located near Pacific Coast Highway and Corral Canyon Road.

California's Wildlife Conservation Board has already approved a $200,000 grant to the National Park Service, in conjunction with the State Coastal Conservancy, to remove the obstacles that are preventing steelhead trout from migrating on Solstice Creek. Thus far, costs of ongoing restoration efforts of this area are estimated to be in the multi-million dollar range.

Historically, Solstice Creek was thriving with steelhead trout, and significant efforts are being made to encourage their return. According to the Chief of Planning, Science, and Resource Management with the U. S. National Park Service, steelhead trout serve an important role in telling us that our ecosystem is healthy and vibrant. Another environmental official with the Santa Monica Mountains Conservancy says that steelhead trout are able to survive in very warm waters, and therefore may be the only steelhead that can survive in California in the next half century.

However, to ensure the return of the steelhead trout to Solstice Creek, the CTC and the other partnering organizations are considering whether to take a portion of Forge's property and build "fish ladders" to enable the fish to migrate upstream from the parking lot area of Forge's property. The CTC will decide on whether to acquire a part of Forge's property for this purpose on October 14th and 15th.

Forge is against the project because the project may hurt his business, since the State would be eliminating parking spaces to the restaurant and the north entrance of his property would be closed off. The CTC, however, insists that they are working with Forge to reach an amicable agreement, and if no agreement is reached, then condemnation will be used as a last resort.

Eminent domain generally refers to the power of the government to acquire private property for a public purpose without having to obtain the consent of the owner. The U.S. Constitution, specifically the Fifth Amendment, and the California Constitution authorize governmental entities to use eminent domain powers to acquire private properties for public use. Private property owners do have rights though--namely, property owners are entitled to fair and reasonable compensation for the condemnation of their property.

Three main conditions must also be met before the government can acquire private property for public use. These three conditions include:

· Public interest and necessity create a need for the government's proposed project;

· The project is planned or located in such a way as to maximize the public good and minimize private injury; and

· The property that is sought is necessary for the planned project.

In this particular case, the issue of "necessity" of the restoration of the Solstice Creek area for steelhead trout remains controversial. Some people have argued that the considerable expenses involved with having the steelhead trout return outweigh the benefits that may result from the project. Others continue to assert that helping the steelhead trout survive is of critical importance to our ecosystem.

To view an article regarding this topic, published in The Malibu Times, please click on the following link: http://www.malibutimes.com/articles/2009/09/23/news/news5.txt

Eminent domain is a complex area of the law, where having a thorough understanding of the law is of critical importance. If you are faced with the possibility of the condemnation of your property by a public entity, please contact one of our experienced and knowledgeable Los Angeles eminent domain lawyers at Fisher & Talwar or call us at (213) 891-0777.

California Redevelopment Association - Budget Crisis

2009-08-12T08:16:00.000-07:00

Facing a state budge deficit, the California State Legislature recently passed a budget, where $1.7 million would be taken from redevelopment agencies this year and $350 million next year, most of which would not be reimbursed. The California Redevelopment Association (CRA) is likely to file a lawsuit against the state opposing the major cut in funds.

Role of CRA
The CRA is a not-for-profit organization that represents redevelopment agencies throughout California. Presently, CRA represents 350 redevelopment agencies statewide, and has associate members in the private sector, such as developers, financial institutions, and redevelopment consultants. Redevelopment agencies are generally separate public bodies that report to the local governing entity of a particular community. The overall purpose of these agencies is to eliminate blight from certain local areas through development and reconstruction.

Although redevelopment agencies are run by local governments, they are in fact state agencies. This is why California had the ability to propose budget cuts for redevelopment agencies throughout the state.

Power of Redevelopment Agencies
Once a plan is approved to redevelop a particular area, the redevelopment agency has the power to acquire the subject property. Agencies have the power to do the following:

Buy and sell property
Make loans or grants to carry out the redevelopment plan
Rehabilitate or remove structures
Ability to use a part of property tax money to partner with private developers for redevelopment purposes

Another critical power redevelopment agencies have is the power of eminent domain. In general, eminent domain is the power of governmental bodies to acquire or take private property for a public purpose.

Criticisms of Redevelopment Agencies
Although proponents of redevelopment claim that redevelopment agencies have helped create affordable housing, improved neighborhoods, and created jobs, many individuals have questioned or criticized redevelopment agencies.

An Orange County Register columnist has stated that the U.S. Supreme Court's decision in Kelo v. City of New London, a significant eminent domain case from 2005, inadvertently expanded the scope of authority of redevelopment agencies. Kelo was a five to four decision, where the U.S. Supreme Court held that a city was permitted to take another person's private property and sell it for the purpose of private development to revitalize the city's declining economy. The court found that doing so did not violate the U.S. Constitution's Fifth Amendment "Takings Clause," which states that private property can only be taken for a public use.

Opponents of redevelopment agencies argue that redevelopment agencies are no longer targeting "blighted" areas, and instead are allowing private developers to build new shopping centers and stores on so-called "blighted" properties. For instance, one redevelopment project that was questioned was a dispute, settled in 2003, where the city of Cypress tried to seize church-owned property to build a Costco. Another controversial project involved the city of Indian Wells, a wealthy area near Palm Springs, that used redevelopment funds to build a championship golf course that was surrounded by a resort.

A recent article by the Los Angeles Times discusses the position of both proponents and opponents of redevelopment agencies.

An experienced eminent domain lawyer can ensure that your rights and interests are protected if a redevelopment agency is seeking to acquire your property through eminent domain. If you need legal assistance of have a question regarding eminent domain, please contact one of our Los Angeles eminent domain lawyers at Fisher & Talwar today or call us at (213) 891-0777.

Resolutions of Necessity Should be Clearly Defined

2009-08-11T10:41:00.001-07:00

A general principle of state and federal eminent domain law is that private property may only be taken for a particular public use. In a California Court of Appeal decision by the Third Appellate District, City of Stockton v. Marina Towers LLC, the court reaffirmed that when a public entity plans to acquire property by eminent domain, the public entity must first adequately identify the project for which the property will be used for before condemning the property.

California Code of Civil Procedure Section 1240.030 states that before a public entity acquires private property for a "proposed project" by eminent domain, the public entity must meet three requirements:

Public interest and necessity require the project
The proposed project is planned in a manner that serves the greatest public good and causes the least private injury
The property sought is necessary for the project.

Additionally, the public entity must pass a "resolution of necessity" before condemning private property. The resolution of necessity must describe the public use for which the property will be taken, and the resolution must contain findings showing that the three requirements for Section 1240.030 have been met. Further, the resolution cannot be adopted by the public entity until the affected parties are given notice of the entity's plans to acquire the property, and hearings are held to determine if evidence exists to support the requirements of the resolution of necessity.

In the Marina Towers case, the City of Stockton (City) sought to obtain private property owned by Marina Towers LLC (Marina). The City held hearings and Marina had an opportunity to question the City's attempt to take the property by eminent domain. However, no one at the hearing identified the specific public project that justified the proposed taking. Instead of identifying a specific public use for the property, the City unanimously passed vague resolutions of necessity.

According to the Court of Appeal, the City's "resolution of necessity" failed to identify the project, which merely recited that Marina's property was "necessary for the public project." The court added that identifying the project was necessary to protect the private property owner's right to procedural due process. The court reasoned that if the public entity is required to engage in a good faith consideration of the advantages and disadvantages of acquiring the subject property, then it is essential for the private property owner to know what the property would be used for so that there can be an honest discussion of the issues.

Furthermore, the court rejected the City's argument that the project description in the resolutions was valid and adequate. The City argued that the resolutions had stated the property would be used for a "public project," and that since the City did, in fact, build a ballpark and apartment building on the subject property after the resolutions were passed, the resolution's project description was sufficient. The court held that if the court accepted the City's argument, it would invalidate the purpose of having resolutions of necessity in the first place, which was to ensure that the public entity carefully evaluated the need of the project and the property before condemning the property.

Significance of the Decision
Marina Towers reaffirms certain protections that private property owners have in eminent domain actions. The decision shows that if you own private property and a public entity is planning to condemn it, the public entity must identify a specific public use or "public project" for the property before condemning the property. By being informed of the proposed use for the property, property owners are better equipped to argue against the taking of the property and question the soundness of such proposals.

Thanks for reading our blog. We hope that you found it helpful and informative. If you need legal assistance with an eminent domain or inverse condemnation matter, please contact one of our experienced Los Angeles eminent domain lawyers at Fisher & Talwar today or call us at (213) 891-0777.

California Court of Appeals Strikes Down Rancho Palos Verdes Development Moratorium

2009-04-27T09:48:00.001-07:00

In Monks v. City of Rancho Palos Verdes, the California Court of Appeals, Second District in Los Angeles recently struck down a Rancho Palos Verdes moratorium on development in a specific area of the city. Because the moratorium was enacted in 1978 after a period of mudslides, some landowners have been prevented from developing their properties for up to 30 years.

The city had attempted to make it possible for landowners to apply for an exemption from the moratorium, and the plaintiffs in this case applied to be able to build their homes. While their applications were pending in 2002, the city council made it harder to meet the application criteria and thus made it impossible for the plaintiffs in the case to build homes on their land. The landowners sued under the state takings clause.

The city argued that it was trying to keep its citizens’ and their homes safe from landslides. However, the court said that the city could not freeze all building just because another landslide might occur or because people might get hurt at some undeterminable time in the future. Using a landmark United States Supreme Court case, Lucas v. South Carolina Coastal Council, the California Court of Appeals held that the Rancho Palos Verdes moratorium deprived the landowners of all “economically beneficial use” of their land, which directly contradicts Lucas. Because these parcels of land were zoned for single-family houses and the plaintiffs could not build homes on this land, the land was economically useless to them.

The city also disagreed with the court about how dangerous it was to build on the land, and could not justify the building prohibition under other areas of law like nuisance or property law. All the landowners wanted to do was build standard homes on their land, and by not allowing them to do that, the court ruled that the city had to compensate them in some way for the economic loss.

How the Monks Decision Might Impact You
The court’s decision in this case might affect you without you knowing it. While California courts had traditionally been reluctant to rule in favor of plaintiffs in matters related to cities over-regulating property, this case now has the potential to open the floodgates. Now there is precedent that moratoriums on building can be considered permanent takings in certain circumstances and therefore would be unconstitutional under California's Constitution. Even if you are allowed some use for the land, it still might be unconstitutional to prevent you from building on it.

Citizens in other communities with similar restrictions on building, developing, or construction might now have a better chance to win compensation if similar moratoriums have prevented building or development. Cities might also have to be more careful with the restrictions they currently have on the books and any they might try to enact in the future.

Thanks for reading our blog. We hope that you found it interesting and informative. If you need legal assistance with an eminent domain or inverse condemnation matter or if you believe a community restriction is keeping you from building on land you own, please contact one of our Los Angeles eminent domain lawyers at Fisher & Talwar today or call us at (213) 891-0777.

Californians Pass Proposition 99 to Seek Protection of Their Homes

2009-02-04T15:25:00.000-08:00

In 2005, the United States Supreme Court decided Kelo v. City of New London, which profoundly changed eminent domain law in this country. In this case, the Supreme Court held that it is not a violation of the Fifth Amendment Takings Clause for a city to take someone’s private property and sell it for private development in the hopes that it will improve the city’s bad economy. The Fifth Amendment requires that private property can only be taken for “public use” with the payment of just compensation. The Court, using a very broad interpretation of what constitutes a public use, held that taking the land to help the city’s economy was sufficient to be considered a public use.

This decision sent shock waves throughout the country because, in general it meant that it was easier for the government to condemn privately owned property for the benefit of private parties, as long as they said they were using it to help the economic condition of the neighborhood. Although the impact of Kelo was somewhat limited in California due to California’s existing redevelopment law, groups in California started to fight back immediately. In 2006, Proposition 90 was placed on the ballot. It would have limited Kelo’s affects in California by putting several restrictions on how the government could take private property. The measure failed, however, after only receiving 47.6% of the vote.

Undeterred by Proposition 90’s failure, several groups immediately began working on another proposition that would limit the state’s right to take private property. In 2008, Californians again went to the polls to vote on eminent domain matters – this time for Propositions 98 (the “Rent Control Rollback”) and 99 (the “Homeowner Protection Act”). Proposition 98 received much negative attention because it would have removed rent control. Proposition 99 was similar to 2006’s Proposition 90, except that it was written more narrowly. Instead of making several changes, Proposition 99’s effect was to amend the California Constitution, Article 1, Section 19 to add Section 19(b), to prohibit “acquiring by eminent domain an owner-occupied residence for the purpose of conveying it to a private person.”

Some opponents of Proposition 99 felt it did not go far enough in its protection, because it would only protect “owner-occupied residence[s].” Because of this limitation, farms, churches, and most importantly, small businesses would receive no protection from Proposition 99. It also included exceptions for situations where the land would be used for public works or improvement, public health and safety, and crime prevention.

Proposition 99 also included a provision that would nullify any other attempt to amend the same section of the state constitution on the same ballot. It passed with 62.5% of the vote; Proposition 98 only received 39%. Because of the nullification provision in Proposition 99 and the fact that it received more votes than 98, Proposition 98 would not have been enacted even if it had received a majority.

Thanks for reading our blog. If you need legal assistance or simply have a question regarding eminent domain or inverse condemnation, please contact one of our Los Angeles eminent domain lawyers at Fisher & Talwar today or call us at (213) 891-0777.