The Eminent Domain Law allows for the condemnation of property to replace property being taken from a private owner with other, substitute property.  These acquisitions are referred to as “substitute takings.” One common situation occurs where a property acquisition and project cuts off another property owner’s access to utility service or public roads.  Section 1240.350(a) of the Code of Civil Procedure authorizes the condemning agency to exercise its eminent domain powers to acquire additional private property not otherwise required for the project in order to replace the lost access or utility service for the cut-off property.

Caveat:  The condemning agency can authorize the use of eminent domain for a substitute private easement of access only where the property is left entirely without any public road access and the easement will be for a public use.

In the case of Council of San Benito County Governments v. Hollister Inn, Inc. (2012) 209 Cal.App.4th 473, the court of appeal agreed with the condemning authority’s decision not to condemn an easement under Section 1240.350(a) since the easement would benefit only the property to be affected by the project, and the affected property had other possible means of accessing public roads.  This is consistent with the rule that condemnation may only be for a public use, which the Hollister court declared is a “broad concept” and “depends on the facts and circumstances” of the particular case.  The Hollister court gave significant deference to the condemning authority’s finding of public use, which was upheld on appeal.  Note that, as acknowledged in the case of County of Santa Cruz v. Izant (1995) 37 Cal.App.4th 141, an owner may try the matter of whether the acquisition of a non-exclusive private easement of access benefiting another property is a public use.

Practice Tip:  To avoid the foregoing issue and protect against a challenge to the right to take, wherever possible, the substitute access should be provided in the form of a public street easement, as distinguished from a private access easement.  Not only does this avoid challenges on grounds that the easement benefits only the affected private landowner (as opposed to the general public), but it also alleviates potential concerns by the property owner regarding maintenance obligations.

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