Wednesday, March 20, 2013

High Speed Rail Update: Challenges Mount as Deadline to Begin Construction Approaches

Currently, two out of the three lawsuits that have been filed against the California High Speed Rail Authority have settled, but the Authority continues to face opposition, and with construction scheduled to start this summer. On March 7th,  the High Speed Rail Authority agreed to a “Memo of Understanding” with a Joint Powers Authority in northern California, which allows for the High Speed Rail to share the track with Caltrain on its route between San Jose and San Francisco.

 Dan Walters’ recent article in the San Jose Mercury News provides the following analysis:

 “Merging the two services is designed to placate project opponents in the high-income neighborhoods on the peninsula. But opposition remains and critics say that a blended system cannot meet the bond measure's requirement that the bullet train carry passengers between San Francisco and Los Angeles in two hours and 40 minutes.”

The court thus far has been siding with the Rail Authority in its recent decisions which have revolved largely around whether the Authority met environmental standards in the planning of this project. The court is scheduled to hold trial in the remaining lawsuit in April 2013. As far as the takings of land, the California Board of Public Works, at its January 14, 2013 meeting, approved the parcels of land which the Authority requested for the project, in order to move forward even though litigation is ongoing. The Authority reasons that if the court does find in favor of the plaintiffs, any eminent domain proceedings or further plans can be put on hold until a resolution is reached.

Saturday, March 2, 2013

Court of Appeal Sheds Light on the Rules of Evidence in Eminent Domain Cases

On November 26, 2012, the California Court of Appeal filed an opinion in connection with an eminent domain case.  In County of Glenn v. Foley (2012) 212 Cal.App.4th 393, the Court of Appeal shed additional light on the interpretation of California Evidence Code sections 822 and 816, which deal with the rules of evidence to be applied in property valuation cases.  The case is about a party named Foley, who had leased 200 acres of his land to the County of Glenn since 1971.  The County had been using Foley’s property as a landfill.  In 2009, the County filed an eminent domain action to acquire the land, plus a substantial amount of surrounding land, also owned by Foley.  
Before the trial, the County filed a motion in limine to exclude all of the testimony of Foley’s appraiser, based on Evidence Code sections 822(a)(4) and 816.  The trial court granted the County’s motion.  Without the testimony of his appraiser, which the trial court excluded from evidence, the property owner stipulated to the value of his property as determined by the County’s appraiser, and the trial judge entered judgment in that amount.  The defendant appealed the judgment, arguing that the exclusion of his appraiser’s testimony violated his constitutional right to a trial by jury. The Court of Appeal held that the constitutional right to a jury trial does not eliminate the requirement that the rules of evidence be followed in an eminent domain case.  However, the Evidence Code must be properly applied.

The defense’s appraisal came in at around $1,700,000.  Foley’s expert had determined that the highest and best use of the property was as an orchard.  The County’s appraiser valued the property at about $637,000, having determined that the highest and best use for the property was as grazing land.   
Evidence Code section 822(a)(4), one of the bases for the trial court’s decision to exclude the testimony of the defense’s appraiser, states that an opinion as to the value of any property other than that being valued, is inadmissible.  The Court of Appeal reversed the trial court’s ruling regarding the section 822(a)(4) issue, stating that excluding an appraiser’s opinion in an eminent domain case is a drastic remedy.  The Court of Appeal felt that the trial court was speculating that the defense appraiser would violate this Evidence Code section, and that instead, the trial judge should have let the jury see the evidence and just allow the County to challenge the weight that the jury should give to the evidence.

Evidence Code section 816, the other bases for the trial court’s decision to exclude the testimony of the property owner’s real estate appraiser, states that, among other things, a valuation witness can rely only on comparable sales that are sufficiently alike in respect to character, size, situation, usability and improvements, to make it clear that the property being sold and the property being valued are comparable.  The Court of Appeal said that section 816 of the Evidence Code is satisfied as long as a comparable sale “sheds light” on the value of the subject property.  As long as the comparable can provide any “rational inference” in support of value, it should be admitted.  The Court of Appeal concluded that in this case, because the comparable sales used by Foley's appraiser had “some tendency in logic to prove the value of the subject property”, the jury should have been able to see that evidence.