Friday, August 30, 2013

In the Works: High Desert Corridor Project

The region in San Bernardino County to the East of Los Angeles County, known as Victor Valley, experienced significant growth in the past decade. As a result of this rapid expansion, The Los Angeles County Metropolitan Transportation Authority (“Metro”) and Caltrans, along with the towns of Palmdale, Lancaster and Victorville, and others, have joined together to execute a study on transportation improvement in this area. The High Desert Corridor (“HDC”) project is currently in the Draft Environmental Impact Report stage, The HDC footprint reflects the proposed span of this project, which would bridge the 14 and 18 freeways.

State transportation authorities believe that the current infrastructure, which moves commercial vehicles as well as provides transportation to local airports, does not support increased traffic volume. The goal of the HDC is to ease congestion along the route between Los Angeles and San Bernardino Counties, but the project has also evolved into a “multipurpose corridor”. This multi-level plan includes toll roads, bicycle lanes and green energy initiatives such as charging stations for electric vehicles.

Friday, August 23, 2013

City of Sacramento Considering Property Condemnation to Build Sports Arena

The City of Sacramento is considering the use of eminent domain to acquire a property necessary to build an arena for the NBA team the Sacramento Kings. Last week, the Sacramento City Council voted to take part in negotiations for the purchase of a property which sits on a portion of the site of the future Kings arena in downtown Sacramento. Currently, a Macy’s menswear store occupies the piece of land subject to possible acquisition.

According to the City Council meeting agenda, the Kings’ owners, Sacramento Basketball Holdings, LLC, had been working towards a deal to buy the property, which fell through, and the owners asked the City to step in. The City’s decision to get involved is incumbent on the owners signing an agreement which would protect the city’s interests. The full August 13, 2013 City Council meeting agenda can be viewed here.

Eminent domain is usually a process reserved for public agencies to acquire land for public improvement projects. According to the CBS affiliate in Sacramento, the arena will be funded by the Kings owners, but its owner will be the City of Sacramento. This could allow the arena to be placed in the category of a “public project”.   However, the Sacramento Bee reports that property condemnation for sports arenas is not unusual.

Tuesday, July 16, 2013

Eminent Domain Round-Up: Road Improvements in San Diego

A Final EIR (Environmental Impact Report) is expected to be released this summer for Caltrans’ I-5 North Coast HOV/Express Lanes Project in Northern San Diego County. The purpose of this project is to improve traffic conditions on the 5 freeway by adding two HOV lanes both in the north and south direction, between La Jolla Village Drive and Harbor Drive in Oceanside. According to Caltrans District 11, daily traffic along this stretch of the I-5 could reach 300,000 by the year 2030.

A road widening project in the city of Ramona will affect property owners in the area. Settlements for land acquisition consisting of partial takings and temporary construction easements have been reached, except for the owners of two parcels. According to the San Diego Union-Tribune, the widening of San Vicente Road is intended to improve safety conditions on a twisting 2-mile portion of the street where over 20 car accidents have taken place in the past five years.

The City of Santee held a Resolution of Necessity hearing on July 10, 2013 to approve eminent domain for approximately 50 parcels of land earmarked for the Prospect Avenue Widening project. Improving traffic conditions, relocating utilities and adding bike lanes along a 1-mile portion of Prospect Avenue are among the project goals.

Wednesday, July 10, 2013

Regional Connector Project Requires Condemnation of Commercial Property in Little Tokyo

By Jeffrey Horowitz

The Los Angeles Metropolitan Transportation Authority (“Metro”) is expected to file a complaint in eminent domain against the owner of a parcel of land in the Los Angeles neighborhood of Little Tokyo. The property is the site of one of three future stations for Metro’s Regional Connector. The Downtown LA News reports that Metro has made an offer to the owner for the property, which consists of three commercial buildings and a parking lot. The owner’s position according to the news report is that Metro’s appraisal does not take into consideration the “highest and best use of the property”.

Condemnation of Commercial Property by a Public Agency

Eminent Domain or Condemnation is the process by which a government agency acquires private property for public use. The term “eminent domain” is not limited to litigation; it includes all proceedings from the initial offer or notice from the condemnor up until the filing of a lawsuit, and through trial or settlement negotiations. If the owner of a commercial property accepts the first offer made to him or her, or otherwise settles with the condemning agency prior to litigation, this is still part of the eminent domain process. Highest and best use is a major factor that sets apart a traditional real estate transaction arising from eminent domain proceedings. A determination of value based on highest and best use must take into consideration practical issues concerning the property such as zoning and location.  A public agency will have the condemned parcel appraised, but property owners should hire their own licensed real estate appraiser to determine the value of the condemned land.

Saturday, June 15, 2013

Eminent Domain on the Crops of California Raisin Growers?

The takings clause of the Fifth Amendment does not only apply to the government’s use of eminent domain to take real estate.  This was emphasized by the United States Supreme Court in last week’s opinion entitled Horne v. Department of Agriculture, 569 U.S. ___ (2013).

Horne is about a California raisin grower based in the counties of Fresno and Madera, who challenged a federal regulatory scheme which has been applied to California raisin growers since 1949.  The regulations, “adopted to stabilize prices by limiting the supply of raisins on the market”, require raisin growers to frequently turn over a percentage of their crop to the Federal Government. 
The government took action against the grower for failing to participate in and comply with the regulatory scheme.  The government assessed significant fines and civil penalties against the grower.  As a defense, the raisin grower argued that the statutory scheme, known as the Agricultural Marketing Agreement Act of 1937 and the California Raisin Marketing Order, violated the Fifth Amendment as an unconstitutional taking of their private property without just compensation.  The grower’s argument was that “it would be unconstitutional for the Government to come on their land and confiscate raisins, or to confiscate the proceeds of raisin sales, without paying just compensation.” 

The grower first went through an administrative hearing process where the first administrative law judge rejected the takings defense, and the appellate administrative officer declined to deal with that constitutional defense.  The raisin grower then filed a lawsuit in Federal District Court, where they lost a motion for summary judgment filed by the government.  The District Court held that there was no physical taking of the crop.  The Ninth Circuit Court of Appeals affirmed, but held that it lacked jurisdiction to hear the grower’s Fifth Amendment takings defense. The Supreme Court of the United States agreed to hear the case in order to decide the jurisdiction issue.
The government argued that the raisin grower’s claim was premature, because it should have first pursued its takings claim in the Court of Federal Claims, under the Tucker Act.  The Supreme Court disagreed, explaining that under the statutory scheme at issue, Tucker Act jurisdiction was withdrawn.  In fact, the regulatory scheme specifically gives the Federal District Court jurisdiction to review administrative rulings.  Therefore, the raisin grower’s Federal District Court claim was not premature.  The Supreme Court further held that a “takings-based defense” can be raised by the raisin grower in connection with the government’s action to enforce the regulatory scheme. 
The Supreme Court unanimously ruled that the raisin grower “raised a cognizable takings defense”, and that the Ninth Circuit Court of Appeals made a mistake when it declined to resolve that defense.  The ruling of the Ninth Circuit was reversed, and the case was remanded back to the Court of Appeals for further proceedings, where a determination will have to be made as to whether the government’s imposition of fines and penalties on the raisin grower violated the Fifth Amendment to the Constitution. 

It will be interesting to see what the Ninth Circuit Court of Appeals does with this case on remand.  Will the Court of Appeals put a stop to the confiscation of the crops or proceeds of the crops of California raisin farmers that has been happening since 1949?   Will this case eventually wind up back with the Supreme Court?

Tuesday, June 11, 2013

San Bernardino County Eminent Domain Update

Last week, the Victorville City Council held a vote on a settlement with a local church, for a partial taking of the property belonging to First Assembly of G-d of Victorville for a road improvement project. The Daily Press reports that the church will receive a total settlement of $2.5 million for the partial condemnation, which affects access to the property as well as reducing available parking spaces.

Read the full article here:

In Ontario, the City Council voted on a resolution to initiate eminent domain proceedings against several businesses for a project that is intended to improve traffic conditions at a rail crossing on Milliken Avenue. The city is seeking easements on two businesses, including a distribution center for Sears and Kmart stores. The Daily Bulletin provides this description of the project:

“The Milliken grade separation will eliminate the at-grade crossing by elevating the thoroughfare over the trains adjacent to Mission. As part of the project the city is seeking the easements to relocate Southern California Edison poles.”