Using An Unavoidable Dilemma To Your Advantage

Consistent with my Practice Tip to Avoid the Potential for Precondemnation Damages (November 14, 2017), I always recommended that public agencies proceed with the precondemnation process in a noncommittal and conditional manner.  This is because evidence showing that the agency has pre-committed to the acquisition can be used to challenge the agency’s otherwise lawful adoption of a resolution of necessity.  See Redev. Agency v. Norm’s Slauson (1985) 173 Cal.App.3d 1121 (resolution of necessity determined to be a sham because agency board “rubber-stamped” a predetermined result);

Sometimes, however, it is nearly impossible to avoid the appearance of precommitment to the acquisition of a particular parcel essential to completing the project.  For example, where all of the other parcels necessary for a project have already been acquired, the condemnation arrow may point directly at the subject property.  Property owners often attempt to exploit this fact to show the agency’s commitment to a particular acquisition.

The favorable side of this double-edged sword is that the public entity can use the fact that no options remain except acquisition in order to establish that the public use and necessity require the taking.  In adopting the resolution of necessity, the governing board must find that the subject property “is necessary for the proposed project.”  Code Civ. Proc. § 1245.230(c)(3).  This fact also assists another finding, that the project is planned in the manner “most compatible with the greatest public good and least private injury.”  Code Civ. Proc. § 1245.230(c)(2).  Having to redesign the project would require an entire set of new property acquisitions, which would arguably increase public costs for the project.  This would also create a greater private injury to the public as a whole since the existing acquisitions would be set aside, and a whole new set of acquisitions would have to occur to accommodate the redesigned project.

Provided the matter is presented in a manner that allows the agency’s governing board to engage in a good faith and judicious consideration of the pros and cons of the issues, and that the agency’s decision is buttressed by substantial evidence, the agency should be able to avoid any showing of bad faith or precommitment to a particular result.

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