Thursday, June 23, 2016

Eminent Domain Snapshot June 2016: California Condemnation and Property Acquisition

Eminent domain can and does occur all over the state of California and a government authority may initiate it under a variety of circumstances. We see many instances of eminent domain brought on by transportation projects and road improvements. Even these can vary widely by the type and scope of the project, as well as what the overarching authority is seeking from the property owner. A quick look at some of the projects currently in some stage of the condemnation process gives us a snapshot of what that looks like for Californians affected by eminent domain.

In Santa Clarita, a city about 30 miles north of Los Angeles, an area known as Vazquez Rocks requires construction work to fix a mangled road. The road, which was shut down in November after it became unsafe for vehicles, connected to major streets Bouquet Canyon Road and Sierra Highway, and was used by residents as an alternate route. A portion of the affected area is owned by the County of Los Angeles, while some of the land is privately owned. Apparently, shutdown didn’t entirely prevent some people from exploring the area, causing the County of Los Angeles to initiate the removal of pavement from road. Earlier this month Public Works began road cleanup, in order to have as much as possible completed while eminent domain proceedings take place.

In the Lake Tahoe region, a unique approach is being taken by the local authorities with regard to the Highway 50 Revitalization Plan. The Highway 50 realignment is part of a larger Community Revitalization project which has set economic, environmental and transportation goals for the South Lake Tahoe downtown area. The Highway 50 project includes a realignment of a 4-lane highway and an improvement to the road currently running through an active area that’s home to local businesses and casinos. What’s interesting about this project is that the Tahoe Transportation Board set forth guidelines for the handling of the project that puts the interests of property owners and residents at the forefront, and includes a provision that no work of any kind will begin until everything else is in order, meaning completion of all relocation and receipt of all necessary funding. The Tahoe Transportation board believes this move will demonstrate their commitment to the community and that it will inspire local residents and business to hold the transportation authority in esteem.

While public works oversees many of the projects that could lead to the acquisition of private property, other situations may arise that could result in a government authority considering or pursuing eminent domain. A somewhat controversial potential use of eminent is emerging in Santa Clara County, where the Housing Authority could move ahead with acquiring a mobile home park, in order to keep it functional. The owner of Buena Vista Mobile Home Park in Palo Alto had plans to shut down the facility. The County offered to purchase the property, but the property owner was not interested in selling. After that route led to a dead end of the county, the housing authority decided to pursue other channels, which may include invoking eminent domain. The subject of a typical eminent domain lawsuit is the legal provision known as Just Compensation, which is the right of a property owner to receive fair and adequate payment for the land that the government acquires, and which is carried out in a court of law. It is more rare to see an eminent domain lawsuit that asks the court to review the legal basis for the action of a government authority using the power of eminent domain on the land in question. There are very specific circumstances under which the government can use eminent domain for property acquisition, and the attorney for the property owner may argue that purchasing the mobile park is not an appropriate use for it.

Finally, trial has begun in another interesting eminent domain matter, this one between the City of Claremont and Golden State Water Company (“GSW”), regarding the city taking over it’s water system. The city invoked eminent domain to take control of the water system, claiming that it would lead to environmental and financial benefits for residents, which constitutes a greater public good. GSW argues that the City of Claremont is not equipped to handle the nuances and challenges of running it’s own water utility. Read the full article here.

Tuesday, May 3, 2016

Port of San Diego Uses Eminent Domain for Chula Vista Bayfront: A Study in Land Use and Development

Eminent domain takes place for a variety of reasons, all of which are initiated by a government authority. The property in question could be commercial, or it could be a private home, whether owned by an individual or by business entity. The project itself could be transportation-related such as requiring land for the construction of  a road or a public transport system. The main requirement for the government’s use of eminent domain is that the project is necessary for the overall good of the area and its residents. It has to be for a necessary public purpose. The eminent domain action I’m going to be discussing here concerns a parcel of land located in Chula Vista, CA and belongs to an aerospace and defense contractor called UTC Aersopace Systems (“UTCAS”), a North Carolina Corporation with many locations throughout the world.  As an attorney and a California resident, this project is an interesting one to examine as it illustrates the complex and lengthy process involving  land use that can precede eminent domain.

 Photo By Port of San Diego [CC BY 2.0 
via Wikimedia Commons

The land in question is needed for a project known as the Chula Vista Bayfront Master Plan (“CVBMP”) which is being carried out jointly by the Port of San Diego, City of Chula Vista and developer Pacifica Companies.  Chula Vista is a city in San Diego County, approximately equidistant from San Diego’s downtown area and the US-Mexico Border. Its Waterfront area is undergoing  a huge transformation that includes developing and redeveloping land for commercial and residential uses, environmental preservation and other improvements.
 The approximately 550 acres comprised of land and water  is bordered by areas that include river, wetlands and a wildlife preserve. The development of this waterfront property is unique. The Port of San Diego which owns the land, had the intention of attracting developers by doing their own environmental review and preparing the land to be developed by any company with an interest to do so.

The Bayfront project has its origins in a land deal that was a rather inventive solution to a problem a developer had with an area of land on which they were attempting to build. Pacifica Companies, after several of its development proposals were rejected due to environmental concerns, engaged in a trade with the Port of San Diego: the port provided the developer with land on which they could proceed with building, and in exchange, Pacifica transferred the problematic land to them, in order to be preserved.  Now the Port is hoping that the land, with its environmental review complete, and with Pacifica and one more developer, RIDA, planning to build on it, an incentive could be created to bring in more development. In addition to the Port of San Diego, the City and the developers, the US Fish & Wildlife Service and San Diego Gas & Electric are also playing a part in the larger project: they worked together on a restoration project to create a salt marsh on the bay so that the gas company could build a new power station. This project was a necessary component of the master plan to develop the Bayfront area.

Now to the eminent domain issue. The parcel of land in question is needed by RIDA to carry out their construction plans as part of the Bayfront redevelopment. UTCAS is using the land as an auxillary parking lot. According to Port representatives, the 4 acres of land were put in the hands of UTCAS during a re-organization with the intention to buy it back when development was initiated. The Port and UTCAS were involved in negotiations to purchase the land but weren’t able to come to terms, and Port commissioners voted to acquire the land through eminent domain on April 14th.  The eminent domain process involves filing a lawsuit that forces UTCAS to come to a deal that allows the Port to acquire its land, upon providing just compensation to the landowner to be proved in the court.

Looking down the path that eventually leads to an eminent domain filing paints a larger picture of the complex circumstances underlying land use, including economic, environmental and geographic issues.  Sometimes, these issues can’t be resolved outside of court. Being knowledgeable on the background and related issues concerning a project provides the perspective which can help an attorney practicing in the area of eminent domain law.

Friday, March 11, 2016

What Do the Recent Developments Mean for California's High Speed Rail?

The California High Speed Rail has been making headlines lately, as certain developments and decisions have propelled it forward, while some ongoing hurdles still need to be overcome. This is after all a tremendous project which will most likely continue to face challenges even as construction work is executed. Many California residents have been and will be affected by the project, as it progresses through each stage. This will serve as an overview of where the project currently stands and what impacts we can expect to see from recent legal decisions as well as the work of the High Speed Rail Authority.  

The High Speed Rail Authority this week achieved an important victory when a Superior Court judge ruled in it’s favor in a lawsuit where opponents claimed current plans are in direct violation of the 2008 bond measure that set forth the parameters of the high speed rail project.

Although the overall sentiment regarding the high speed rail in California has been declining since voters approved the project in 2008,  it appears to have the backing of the state government as well as the courts. In the aforementioned case, plaintiffs claimed that because of significant changes and modifications,  the high speed rail in it’s current form has pivoted too far away from what voters approved in 2008. They argued that plans have been altered to such an extent that the project no longer aligned with  the initial cost, construction schedule, and the bullet train’s service once it’s built.   

In the 2008 bond act, important criteria were laid out for the building schedule of the various portions of the project, ultimately to span from Sacramento to San Diego, as well as the operation of the actual bullet train. Recent plans have the high speed rail sharing a track with a commuter train in Northern California, thereby increasing  expected travel time. Train service that fails to meet the required maximum travel time between certain points were specifically cited in the lawsuit. The judge however, stated in his ruling that nothing in the Bond Act precluded the High Speed Rail Authority from making changes that are necessary to facilitate the rail’s progress and that due to the dynamic nature of the project the Authority still has the opportunity to meet the Bond Act’s requirements.

At each step the high speed rail authority is re-evaluating and changing  plans, as unexpected challenges arise. This is perhaps most evident when it comes to  condemnation and land acquisition. In the San Joaquin Valley, the eminent domain process is taking much more time than anticipated. The process of negotiating with landowners, which can certainly be lengthy due to the complicated nature of eminent domain proceedings, is more protracted than the high speed rail authority counted on initially. Furthermore, as original plans for the rail have changed course, additional land acquisition has become necessary. According to the Fresno Bee, as of last month 668 properties of the 1,468 required for the project have been acquired by the High Speed Rail Authority.

The above-mentioned lawsuit held that a scenario where the High Speed Rail ran on the same tracks as a commuter train would be anathema to the service promised by the Bond Act.  It’s possible that the electrification of Caltrain, a commuter line that serves the Bay Area, could facilitate the construction of the High Speed Rail sooner in that region than expected.

Finally, a large engineering/infrastructure  corporation based in Spain, called Ferrovial, has cemented a deal to build a portion of the high speed rail located between Fresno and Bakersfield. Ferrovial will be carrying out construction and relocation work in an area spanning approximately 22 miles, and is expected to be completed by 2018.

Wednesday, May 20, 2015

Residents and Environmental Groups Oppose Mid-County Parkway Project in Riverside County

In Riverside County, a proposed highway project is facing opposition from locals and environmental groups. The Riverside County Transportation Commission (“RCTC”) approved the Mid-County Parkway EIR last month, allowing the project to proceed to the next stage. This freeway would be an entirely new road connecting the I-215 in Perris and the SR-79 in San Jacinto, and would span about 16 miles. More information can be found in the complete Environmental Impact Report.

A lawsuit was swiftly filed by environmentalist groups, who are questioning the necessity of the proposed freeway, in light of the wildlife sanctuaries that would be threatened by its construction. The lawsuit names at least two endangered species that can be found in the San Jacinto Valley, which would be directly impacted by the project.

Residential and commercial properties could also be affected by the project, which may be acquired by the State through the use of eminent domain. The Press Enterprise reports that almost 400 people may be displaced in order to build the Mid-County Parkway and the RCTC is preparing residents for potential property takings:

“We’ve been very proactive in explaining the potential right-of-way impacts of the project,” Standiford, [John Standiford, RCTC deputy executive director] said. “We will comply with state and federal laws regarding acquiring right of way.”

The lawsuit against the project further alleges that construction of the 6-lane freeway, is, in addition to not meeting standards for eco-friendliness, is not cost-effective, and will discourage public transportation development. In addition, it claims that future traffic forecasts for the area found in the EIR are overstated.

According to the project website, there is a pressing need for an east-west freeway, as none currently exists, because it’s considered an effective solution for Riverside County’s traffic concerns.

Monday, March 16, 2015

The SR 710 Environmental Study Reveals Important Impacts on residents of Los Angeles County

On March 6, 2015 Caltrans District 7 released the Draft Environment Impact Report for the SR 710 project.  This long awaited study considered five alternatives for reducing traffic congestion, and determined that the most effective option would be a freeway tunnel bridging the existing gap between Alhambra and Pasadena.

The Los Angeles Daily News reports that locals hold strong opinions regarding the proposed alternatives for improving transportation in this area.  A group called the 5-City Alliance is supporting the light rail option, claiming that a freeway tunnel which focuses more on improving conditions for vehicles like cars and trucks, will not ease traffic as well as the implementation of public transportation. Light rail, however, will have cultural as well as aesthetic impacts. This excerpt from the above-referenced Daily News article describes possible effects of the light rail on nearby property owners:

“…impacts from the light-rail train include the displacement of 15 businesses along Mednik Avenue south of the 60 Freeway; acquisition of 58 full properties in Alhambra, East L.A., Monterey Park, Pasadena and South Pasadena; and the relocation of 73 businesses and the displacement of 645 employees.”      

The SR 710 EIR study explores several alternatives as possible means for improving the traffic conditions in the area. The first one is the Transportation System Management/Transportation Demand Management (“TSM/TDM”) which is a series of improvements to streets, intersections and existing equipment such as traffic signals. There is also the required no-build alternative. The remaining three alternatives would have the most impact. These are the Bus Rapid Transit Alternative, the Light Rail Alternative and the Freeway Tunnel Alternative.

According to the EIR, the four alternatives other than the no-build, would have land use impacts ranging from 16-47 temporary construction easements and acquisition of land ranging in size from .6 to 1.5 acres.

The Los Angeles Times reports that the freeway double decker tunnel is the most expensive option, with a $5.6 billion price tag. A slightly more cost effective alternative is a narrower double decker tunnel where north and southbound traffic move in opposite direction on each level.  The light rail cost is approximately half of that of the larger tunnel, but it’s also the option that would take the longest, at an estimated six years to build.

Friday, January 30, 2015

State May use Eminent Domain To Allow The Public Access to a Beach in Northern California

A property in Northern California is the subject of a dispute over an easement for public beach access, which could possibly lead to eminent domain proceedings:

“The State Lands Commission may use powers never employed in its 77-year history, seizing private land for public use to end a battle between surfers and billionaire venture-capital investor Vinod Khosla, who has been locking a gate at his beach property along California’s Pacific Coast.

Beach-goers are seeking entry to a portion of the property known as Martins Beach, a destination for surfers, while the homeowner holds the position that the beach is on his property, which is privately owned, and he has no obligation to the locals who want to use it.

The property’s owner, Vinod Khosla, a Silicon Valley entrepreneur, filed suit a few years ago to deny access to local surfers to 89 acres of coast which he claims is private property, and which includes Martins Beach. Mr. Khosla’s position is that no right of way is in place to allow the public use of the beach, and as the owner of the property he would be burdened with hiring employees to manage it. A gate that permits access to the beach was intermittently left open by the property owner when he purchased the real estate in 2008 until it was finally completely shut a few years later. In 2014 the court ruled in favor of beach-goers when it ordered the gate on Mr. Khosla's property to remain open.

The State of California has a duty to maintain access to the natural resources from which residents and visitors derive pleasure and enjoyment. On this basis, the state is in negotiations with Mr. Khosla to purchase an easement that would allow public use of his property to access the beach.

Eminent Domain may be used by the state to acquire the right of way if Mr. Khosla does not reach an agreement with state authorities. To prevent the acquisition of his property, or an interest in it, Mr. Khosla would have to argue that providing surfers beach access is not within the definition of eminent domain, which is to say the taking of private property for the greater public good.  At one time, the California Coastal Commision threatened Mr. Khosla with a fine of over $10,000 a day as long as the gate was locked and public beach access was denied.

Wednesday, December 24, 2014

California High Speed Rail Litigation: Support for the Project in the Form of a Recent Federal Ruling

A ruling came down on December 15th, which has further eased the way for High Speed Rail to move forward in California. The United States Surface Transportation Board ruled in favor of the High Speed Rail Authority when it decided that the federal government’s actions override the state law invoked in lawsuits against the project.  Specifically, opponents filed suit in several jurisdictions on the basis of the Environmental law known as CEQA, a set of state regulations, which has had the effect of delaying construction on the Fresno-Bakersfield leg of the project.

The High Speed Rail Authority, as agent of the Surface Transportation Board, is empowered by the federal agency to proceed with construction of the HSR in California. The Board ruled that CEQA, as a state law, cannot be used to impose restrictions on the High Speed Rail that result in significant delays in it’s progress. This is because the federal government trumps state laws and regulations. This ruling may set a precedent that can be applied to any future lawsuits against the HSR based on CEQA, thereby speeding up High Speed Rail construction even more.

Any action on the part of the court that eases the pressure of time constraints will be a boost for the High Speed Rail Authority.  As the Authority seeks contractors for the first few legs of Rail Construction, it’s also facing the difficult process of property acquisition, with only 1/5 of the land parcels needed for construction of the Fresno-Madera portion of the project ready for contractors as of November.

There are also cases still pending in the California Supreme Court, both attempting to overturn appellate decisions concerning Proposition 1A, the bond measure funding the High Speed Rail that voters approved in 2008. The original lawsuits claim that the High Speed Rail Authority is in violation of Proposition 1A, because the costs estimates as well as timing concerns for the project have been amended significantly since passage of the law.