THE “ABCs” OF EMINENT DOMAIN AND INVERSE

CONDEMNATION

Sima R. Salek, Esq.Jeffrey F. Kagan, Esq.

Orbach, Huff & Suarez LLP

THE ABCs – An Overview

• Eminent Domain – Direct Condemnation– Public Entity Seeks To Acquire Property

• Inverse Condemnation– Property Owner Claims Public Entity Took or

Damaged Property

CONSTITUTIONAL BASIS• United States Constitution:

– “. . . Nor shall private property be taken for public use, without just compensation.”

• California Constitution:

– “Private Property may be taken or damaged for public use only when just compensation. . . has first been paid to, or into court for, the owner.”

Eminent Domain Pre-Condemnation Procedures

• Walkthrough with Appraiser and Owner• Appraise Property• Obtain Approval to Make Offer in Closed

Session• Make Offer

– No less than appraised value• Good Faith Negotiations

Acquire Property Voluntarily OR Proceed to Resolution of Necessity

Resolution of Necessity• An administrative determination that the

statutory prerequisites for taking have been met.

• A Resolution of Necessity must contain:

1. A general statement of the public use for which the property is being taken and reference to the statute authorizing eminent domain;

2. A description of the general location and extent of the property being taken; and

Resolution of Necessity Cont.3. A declaration that the governing board of the public

entity has found and determined each of the following:

- The public interest and necessity require the proposed project;

- The proposed project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury;

- The property described in the Resolution of Necessity is necessary for the proposed project; and

- That the public entity made the statutory offer to the property owner or did not make the offer because “the owner cannot be located with reasonable diligence”.

Resolution of Necessity Cont.

• Must give notice and opportunity to be heard to all owners on last tax assessor roll.

• Failure by an owner to file a written request to appear and be heard within 15 days after notice mailed results in waiver.

• 2/3 vote of governing body

Conclusive Effect of Resolution• Resolution of Necessity conclusively

establishes:– The public interest and necessity require the project;– The project is planned or located in the manner that

will be most compatible with the greatest public good and the least private injury;

– The property sought to be acquired is necessary for the project.

• Resolution of Necessity does not have conclusive effect if “gross abuse of discretion” by governing body.

Filing Action/Pleadings

• Complaint– Names of Plaintiff and Defendants– Description of Property, Map or Diagram– Allegations of Public Use, Necessity, Adoption

of Resolution of Necessity, Statutory Authority for Eminent Domain

• Answer– Nature and Extent of Property Interest– Challenge to Right to Take

Challenges to Right to Take

• In Answer or Demurrer• Grounds:

– Plaintiff not authorized to exercise power of eminent domain

– Stated purpose is not a public use– Plaintiff does not intend to devote the property to the

stated purpose– Property not subject to eminent domain for stated

purpose– No reasonable probability of use in 7 years

Deposit of Probable Compensation

• Before Deposit, Expert Prepares Summary of Basis for Appraisal

• Deposit Fair Market Value in Court• Serve Notice of Deposit• Interest Holders May Apply to Withdraw

Money

Possession Prior to Judgment• Prejudgment or Immediate Order for

Possession/“IOP”

• Must Have Made Deposit

• Public Entity Can Obtain Possession:– 3 Days if Not Occupied– 90 Days if Occupied

• Risk of Loss Transfers to Public Entity

Experts/Discovery

• Hire Appraiser– Owner can also testify

• Can Conduct Discovery

Pre-Trial Matters

• Statutory Exchange of Appraisal Data– 90 Days Before Trial or Date Agreed to by Parties

• Final Offer– 20 Days Before Trial

• Note: Failure by Public Entity to make reasonable offer, when Owner made reasonable offer, subjects Public Entity to litigation expenses (attorneys fees, expert fees and costs)

Trial

• Prima Facie – Public Entity Burden of Proof to Establish Public Use and Necessity

• Valuation – Compensation– No Burden of Proof– By Jury

• Apportionment

The ABCs of Inverse Condemnation

• When Person or Entity with Property Interest Claims that a Public Entity Took or Damaged Its Interest Without Payment of Just Compensation

• The Public Entity Is Not Actively Seeking to Acquire Property

• Philosophical Underpinning: Disproportionate Contribution to a Public Undertaking

• Often Not Obvious Taking

• Fact-Specific and Fact-Intensive

Elements of Inverse Condemnation Cause of Action

Plaintiff has initial burden to establish each:

• Interest in Real Property• Public Project• Causation• Damage or Taking

Before a jury can even consider the amount of “just compensation”, if any, to be awarded.

Interest In Property

• Property Owner• Tenant• Trustee• Executor• Mortgagor/Lien Holder• Holder of an unexercised option to purchase• Insurer of merchant as its subrogee• Another public entity

“Public Project”• Public entity planned, approved, constructed or

operated a public project.

• Public entity “substantially participates” in some activity for the public use or benefit.

Note: Mere approval of plans/issuance of permits is

not, in and of itself, sufficient “substantial participation” to create inverse condemnation exposure.

Causation• Strict liability

Any actual physical injury to real property proximately caused by the improvement as deliberately designed and constructed, irrespective of foreseeability.

• Exceptions:1. Exercise of Police Power2. Where “state” had the right to inflict

damage at common law.

Causation

• When Intervening Force:

“Substantial Factor” Test

Whether governmental action, acting alone, could have produced the damage.

Damage or Taking

• Fact-based specific inquiry

Types of Inverse Condemnation

• Physical Intrusion• Intangible Intrusion Not Causing Physical

Damage (noise, dust, fumes)• Intangible Intrusion Causing Physical

Damage (vibration, land stability)• Loss of Access• “Klopping” Precondemnation Delay• Regulatory Takings

Physical Intrusion

• Water damage- Streams- Flood control- Riparian rights

• Land Stability- Subsidence- Lateral/subjacent support

Physical Intrusions

• Loss/Interference with Access

• Good Faith Mitigation

Intangible Intrusion – No Physical Damage

• Overflying aircraft

• Highway, airport noise

• Public works construction projects

• Utilities– No liability for electromagnetic fields.

Intangible Intrusion – Causing Damage

• Vibrations

• Land Stability / Subsidence

Loss of Access• Complete deprivation is actionable• No right to expect that access will be maintained

indefinitely• Public policy favors public improvements,

especially to traffic• As long as property remains accessible, there is

no inverse condemnation liability• Unreasonable construction activity is actionable

– Vehicles and equipment– time

“Klopping”• Unreasonable precondemnation delay or other

activity

• Don’t announce intent to condemn before you mean it!

• Also statutory basis: If Public Entity does not initiate eminent domain action within 6 months of Adoption of Resolution of Necessity (Code of Civil Procedure Section 1245.260)

Regulatory Takings

• The “facial” or “as applied” challenge to a land use restriction or ordinance.

• Per Se Taking: – Ordinance takes or denies all economically viable

uses of property. Lucas v. South Carolina Coastal Council (1992) 505 US 1003.

• Partial Taking: – Ad hoc analysis of factors. Penn Central Transp. Co.

v. New York City (1978) 438 US 104.

Key Penn Central Factors

• The economic impact of the regulation of the claimant.

• The impact of the regulation on the investment-backed expectations.

• The character of the governmental action.

Common Regulatory Takings Contexts

• Zoning

– Down zoning v. open space overlays

• Development Moratoria

– Generally, not a taking

– 30 years temporary moratorium is not a taking

– Weigh state interest v. burden on owner

Common Regulatory Takings Contexts

• Permits

– If total denial (=denial of all economically viable use) must compensate owner unless denial was for public safety (police power) or unless delay in issuing permit was normal in the permissible regulation of development.

– Mere delay in issuing permit is generally not a taking.

VALUATION ISSUES• Fair Market Value (Code of Civil Procedure Section

1263.320):

“. . . The highest prices on the date of valuation that would be agreed to by a seller, being willing to sell but under no particular or urgent necessity for so doing, nor obliged to sell, and a buyer, being ready, willing and able to buy but under no particular necessity for so doing, each dealing with the other with full knowledge of all of the uses and purposes for which the property is reasonably adaptable and available.”

• Same Standard In Inverse Condemnation Except in Unusual Circumstances

Valuation of Special Use Property

• Fair Market Value for Special Use Property (Code of Civil Procedure Section 1263.320):

“The fair market value of property taken for which there is no relevant, comparable market is its value on the date of valuation as determined by any method of valuation that is just and equitable.”

Mitigation

• Good faith mitigation measures are compensable in inverse condemnation.

Date of Value

• Eminent Domain:– Date of Commencement of Action if brought

to trial within 1 year– Date of Trial if after 1 year– Date of Prejudgment Deposit

• Inverse Condemnation:– Date of Taking v. Date of Trial

Date of Value – Current Hot Issue in Eminent Domain Case Law

• Saratoga Fire Protection District v. Hackett (2002) 97 Cal.App.4th 895

• Mt. San Jacinto Community College District v. Superior Court (2005) 126 Cal.App.4th 619

• San Diego Metropolitan Development Board v. RV Communities (2005) 127 Cal.App.4th 1201

• New Case: City of Santa Clarita v. NTS Tech Sys. (2006) 2006 WL 255080

Additional Considerations in Inverse Condemnation

• Statute of Limitations

– Three Year Statute of Limitations: – Code of Civil Procedure Section 338(j): “An action to recover for

physical damage to private property under Section 19 of Article I of the California Constitution”

– Note: Five Year Statute of Limitations for Adverse Possession

• Date of Accrual– Constructive or Actual Knowledge

• “Continuing Takings”

Additional Considerations - General

• Furniture, Fixtures and Equipment– Fixtures Are Actionable In Inverse

Condemnation• Relocation Benefits• Loss of Goodwill