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.