Pitfalls Arising From Tardy Involvement of Public Entity Counsel in an Eminent Domain Action

Public entity counsel should become involved early in the planning stage of the project.  If this does not occur, the ability of public entity counsel to acquire a needed parcel at fair market value could be compromised by the time counsel gets the file.  For example:

  • Staff may have left a paper trail demonstrating that the required Code Civ. Proc. § 1245.235 hearing on the adoption of the resolution of necessity was a sham, and so jeopardized the public entity’s right to take.
  • An inadequate appraisal may have been made which will hang like an albatross around the neck of counsel at trial. The credibility of the appraiser may be hurt if s/he must later correct what was initially a flawed appraisal. The retention of a second appraiser adds cost to the litigation. Moreover, if a second appraiser is retained for trial to replace a less-than-adequate appraiser and the first appraiser is undisclosed, owner’s trial counsel may indirectly suggest to a trial jury that there is a “secret” or “phantom appraiser” being hidden by the public entity. The inference will be that the phantom appraiser agrees with the owner’s valuation and the condemnor may be unable to dispel this suggestion without calling the inadequate appraiser as a witness.
  • Negotiations may have taken place before the Gov. Code § 7267.2(a) statutory written offer has been made, or the Gov. Code § 7267.2(a) offer itself may be legally inadequate. Similarly, Staff may have been unaware that certain administrative or procedural requirements were required before the adoption of a resolution of necessity, such as obtaining findings that the project is consistent with the General Plan or that it complies with the California Environmental Quality Act, thus inviting a challenge to the right to take.
  • Staff may have inadequately described the scope and extent of the property to be acquired (typically easements) or omitted mention of significant aspects of the project in the resolution of necessity, resulting in unexpected valuation issues.
  • Late consultation with counsel may result in contractual agreements and planning documents that prematurely commit the agency to acquire the property, causing damages to occur to the property owner before the condemnation actually occurs.
  • Statements may have been made by staff to the owner or tenants appear to irrevocably commit the public entity to a potential eminent domain land acquisition before the adoption of a resolution of necessity, creating the potential for precondemnation liability.

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