Don’t Forget The Consistency Finding!

An often overlooked pre-condemnation requirement is that the project be reviewed for consistency with the general plan.  California Government Code section 65402 requires that a city, county or local agency may not acquire real property until the location, purpose, and extent of such acquisition have been submitted to and reported upon by the “planning agency” (for a city, typically its planning commission at a public hearing) as to conformity with its adopted general plan.  Often, this consistency finding may have occurred long in advance of the adoption of a resolution of necessity.  If not, depending upon the schedule condemning agency’s planning agency, the consistency finding may occur simultaneously with the adoption of the resolution of necessity.  While there is no case on point to date, an owner may attempt to use an agency’s failure to make a conformity finding as a basis to challenge the right to take.  See Code of Civil Procedure section 1250.350(h), which allows an owner to challenge the right to take on “[a]ny … ground provided by law.”

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