Communication is Key: Drafting the Resolution of Necessity and Complaint

Often times, property being acquired may be used for a purpose other than to provide an area for the installation of the new infrastructure.  For example, an agency may be acquiring property to provide substitute utility service to, or access to a public road from, a property that is not be acquired but which is nevertheless losing its existing utility service or access because of the overall project.  (Code Civ. Proc. § 1240.350).  Similarly, an agency may be acquiring the whole of a property, even where only part of it will be needed for the project because the remaining portion will be in such size, shape or condition as to be of little market value.  (Code Civ. Proc. § 1240.350).

It is important to make sure these reasons are communicated to the agency staff member drafting the agenda reports and the resolution of necessity, as well as the attorney preparing the complaint in eminent domain.  This is because both the complaint and resolution of necessity are required to specifically refer by code section the portion of the eminent domain law that authorizes the reasons for these types of acquisitions.  And, while failing to identify the property code section could be viewed as a simple error of omission, the impact of such a mistake can be extreme.  For example, in PG&E v. Superior Court (1986) 180 Ca1.App.3d 770, the court dismissed the condemnation action because the proper statutes were not cited, causing PG&E to “go back to the drawing board” and cure the mistake administratively. A delay from such a result can be devastating if the public agency is on a short timetable to acquire the rights to begin construction.

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