Handling The Eminent
Domain Process
Bergman Dacey Goldsmith, APLC
Greg M. Bergman
Brian J. Bergman
10880 Wilshire Boulevard, Suite 900
Los Angeles, California 90024
(310) 470-6110 (w); (310) 474-0931 (f)
www.bdgfirm.com
gbergman@bdgfirm.com
bbergman@bdgfirm.com
How is eminent domain defined under California law?
Eminent domain is the power of government to take
private property for public use. While it is an inherent
power of the state, its exercise is restricted in both the
California and United States Constitutions.
The restrictions
– Private property may be taken or damaged for public use only
when just compensation . . . has first been paid . . . ." (Cal.
Const., art. 1, § 19.)
– Similarly, the Fourteenth Amendment to the United States
Constitution mandates that the state shall not take property
without due process of law, including the requirement the state
make just compensation to the owner of property taken.
County of San Diego v. Miller, 13 Cal. 3d 684, 687 (Cal. 1975)
BDG’s 4 Step Approach to
Handling Eminent Domain Cases
Initial Steps
Pre-Condemnation Negotiation & Offer
Resolution of Necessity
Court Proceedings
Initial Steps
Assemble a team
In-Depth Review
Perform title investigation
Identify goals
Initiate contact
The Team
Include all relevant players
– Client
– Attorneys
Who else?
– Appraiser
– Environmental consultants
– Technical consultants
In-Depth Review
What actions have been taken to date?
Environmental Impact Report
Minutes of prior negotiations
Appraisals
Prior public findings?
Title Investigation
What encumbrances are there on the
property to be taken, if any?
Get a preliminary title report as early as
possible.
– Things to look out for:
Liens
Easements
Client Goals
What are the client’s goals for taking?
– Time
California law provides a specific process for
taking property. What is MTA’s timeline for
acquiring possession of property, and how does
that fit with the legal requirements?
– Money
California law mandates that the condemnee be
provided “just compensation.” What is the MTA (or
the client) willing to pay?
Making the Initial Contact
First impression is a lasting impression
– Sets tone
– Posture/Strategy
Keeping in mind informal resolution v. litigation
Express interest in the property
Discussion items:
– Schedule
– Appraisal date
– Assessment date
Pre-Condemnation Appraisal
Appraise the property, including all
improvements
– Effective January 1, 2007, the public entity
must also pay for the property owner’s
appraiser, up to $5,000.
Conduct applicable environmental
assessments.
– Can get Court order for access to property if
landowner will not provide access voluntarily.
Negotiations & Offer to Purchase
Offer to purchase is made to the Owner
Buyer is required to make a full price offer
at the amount stated based on the precondemnation appraisal.
Offer cannot be less than the Buyer’s
appraisal amount of the fair market value
– Note: reductions may apply (environmental
impact/contamination, etc…)
Negotiations & Offer to Purchase (cont’d)
Written Offer for purchase must include the
following:
– Complete appraisal; or
– A summary statement that includes the following:
Date of valuation;
The highest and best use of the property;
Applicable zoning;
Sales or analyses supporting the value determination; and
the statement must separate the compensation for the
property being acquired from the compensation offered for
any damages
– Must also include calculations and narratives supporting the
components of compensation.
Negotiations & Offer to Purchase (cont’d)
Also…
– Along with the written offer, Buyer must
provide seller with:
Information packet, which outlines the process of
eminent domain; and
Owner’s rights under the eminent domain laws.
Resolution of Necessity
To take the property, the public entity must make
findings based on “substantial evidence,” that:
– The public interest and necessity require the project;
– The project is planned or located in a manner that will
be most compatible with the greatest public good and
the least private injury; and
– The property sought to be acquired is necessary for
the project.
These findings are made in a “Resolution of
Necessity” that is adopted by the public entity.
Resolution of Necessity (cont’d)
Resolution must contain:
– A general statement of the public use for which the property is to
be taken and references to the applicable statutes that authorize
the public entity to acquire the property by eminent domain;
– A description of the general location and extent of the property to
be taken; and
Must contain “sufficient detail for reasonable identification”
– A declaration that the governing body of the public entity has
found and determined that:
The public interest and necessity require the proposed project;
The proposed project is planned or located in a manner that will be
most compatible with the greatest public good and the least private
injury;
The property is necessary for the proposed public project; and
The offer of compensation has been made to the Owner
Resolution of Necessity (cont’d)
More requirements…
– The public entity may adopt the resolution of
necessity only if the following condition is met:
All persons whose property is to be acquired is provided with
notice (via first class mail); and
A reasonable opportunity to be heard
Environmental Concerns (CEQA)
– The public entity must comply with its obligations
under environmental review laws
– Compliance must be confirmed prior to the taking
Relocation Assistance
Pre-condition to initiation of eminent domain
action in Court:
– The public entity must create a relocation assistance
program for those affected by the proposed taking.
Reimbursement of reasonable moving expenses
Reimbursement of reasonable expenses necessary to
reestablish a displaced…small business, where substantial
loss of patronage will occur, up to $10,000.00
Each reimbursement situation is different, and must be
carefully analyzed under the applicable law to determine
allowable compensation.
Court Proceedings
The last resort…
Court Proceedings (cont’d)
Not all attempts to resolve informally will
achieve the desired results
BDG and its team of experienced
attorneys prepares the Eminent Domain
Complaint and serves it on all relevant
parties (in accordance with California’s
Eminent Domain laws).
Court Proceedings (cont’d)
Options:
– Motion for Pre-Judgment Possession
Note: public entity must deposit the probable
amount of “just compensation.”
Options for Other Side
– Anticipate legal attacks (i.e. Demurrer)
– Answer
– Cross-Complaint
Court Proceedings (cont’d)
During the litigation:
– Expert Discovery will be key:
Common disputes:
– Environmental Impact
– Fair market value of the property
Other side will hire their own experts
Mutual exchange of appraisal reports
Court Proceedings (cont’d)
Last resort settlement attempts:
– Final settlement demands
– Final settlement offers
– California Civ. Proc. Section 998
If no settlement reached, litigation will
proceed to jury trial.
Trial
Jury trial will take place to determine the fair
market value of the property.
“Highest and best use”
– Is the equivalent of the fair market value, which takes
into consideration the most valuable use to which the
property can be put in the reasonably foreseeable
future; and
– That which it is geographically and economically
suitable.
Other significant issue:
– What is the “larger parcel” issue regarding severance
damages, if any?
Trial
Pre-trial motions:
– Motions in Limine
Trial
Post-trial considerations:
– Payment of the Eminent Domain award must be made within 30
days after issuance of the Final Judgment.
– If possession not taken previously, the public entity can take
possession after a 30 day notice if there are persons dwelling on
the property, or a 10 day notice in all other situations.
Fees and Costs:
– Parties may obtain attorney fees and costs at end of trial if court
determines that the public entity condemnation offer was not
reasonable.
The End
Thank you