Tag: eminent domain

Any time after an eminent domain complaint is filed, including after a final judgment, a public agency may voluntarily abandon the condemnation.  This means that the property is no longer being taken, and as a result the owner receives no compensation for the property being abandoned.  The agency may abandon all, or just some, of the property interests being taken. 

The abandonment procedure is twofold.  The public agency must file in court a written notice of abandonment pursuant to Section 1268.510(a) of the Code of Civil Procedure.  However, to avoid future claims by the owner of any cloud on title, it is also recommended that the public agency rescind the resolution authorizing the property interest being abandoned pursuant to Section 1245.260(c) of the Code of Civil Procedure. 

While no longer entitled to compensation for the taking, the property owner is entitled to recover its litigation expenses related to the property interest being abandoned.  See Code of Civil Procedure § 1268.610.

A partial taking often necessitates that alterations be made to the remaining property so that it may best adapt to the changed circumstances caused by the taking.  In an earlier post from November 19, 2020, I questioned whether a temporary construction easement (TCE) was truly necessary when the work can be done by the property owner.  An often-overlooked provision of the Eminent Domain Law provides another possible solution. 

Code of Civil Procedure section 1263.610 authorizes a public entity and affected property owner to make an agreement that the public entity will:

1. Relocate for the owner any structure, or
2. Carry out for the owner any work on property not taken, including work on any structure.

The Legislature intended the word “work” to have the broadest possible meaning, and covers such things as screening off roads, sound-proofing buildings, constructing rights of way, fences, driveways, sidewalks, retaining walls, and drainage or utility connections. Such an agreement may be entered into if it likely reduces the amount of compensation otherwise payable to the owner by an amount equal to or greater than the cost of such work.  And, of course, the agreement must be voluntarily entered into by both parties.  If successfully negotiated, such an agreement can obviate the need for a TCE over a portion of the property not otherwise affected by the taking, and can significantly reduce a claim for severance damages.

Where there are contingent future interests in property acquired by eminent domain, the future interest holders may be entitled to compensation. This is because the value of the fee owner’s interest in the property is diminished to the extent of the value of the contingent future interest.  Thus, any award for the value of the property must be apportioned between the fee and the future interest holder.

The methodology of apportionment is spelled out in Section 1265.410(a)(1) of the Eminent Domain Law.  Where the property’s acquisition violates a use restriction coupled with a contingent future interest granting a right to possession of the property upon violation of the use restriction, and violation of the use restriction was otherwise reasonably imminent (i.e., to the exclusion of any consideration of the eminent domain proceeding), the owner of the contingent future interest is entitled to compensation for its value.  

In short, section 1265.410(a)(1) contemplates a situation in which the grantee of the conditional deed intends to continue to comply with the condition indefinitely, but is prevented from doing so because the public agency has seized title to the property through the power of eminent domain.  And because it applies in situations where the holder of the present interest’s intentions are frustrated by the condemnor, it necessarily assumes that the present interest holder and the condemnor are separate entities dealing at arm’s length. 

Note that if the present interest holder and the condemnor are one in the same, then Section 1265.410(a)(1) does not apply and the condemnor is not entitled to receive a portion of the condemnation award.  See City of Palm Springs v. Living Desert Reserve (1999) 70 Cal.App.4th 613.

Over my career, I’ve come across an eminent domain case or appraiser that cited to the State Board of Equalization Assessors’ Handbook as authority regarding a valuation proposition.  This seemed odd to me.  However, I recently learned the reason why.

In the case of Prudential Ins. Co. v. City and County of San Francisco (1987) 191 Cal.App.3d 1142, the court pointed out that these handbooks have been “relied upon by the courts in interpreting valuation questions posed by the state Constitution and statutes (citations) and have been accorded ‘great weight’ in this regard.”  More recently, the court in the eminent domain case of San Diego Gas Electric Company v. Schmidt (2014) 228 Cal.App.4^th 1280 confirmed that “[c]ourts may rely upon assessor handbooks in the interpretation of valuation questions.” 

Query if this can be expanded to mean that assessor cases themselves may be relied upon as authority in an eminent domain case?  Let me know what you think.