Handling The Eminent Domain Process Bergman Dacey Goldsmith, APLC Greg M. Bergman Brian J. Bergman Wilshire Boulevard, Suite 900 Los Angeles, California (310) (w); (310) (f)

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) County of San Diego v. Miller, 13 Cal. 3d 684, 687 (Cal. 1975) County of San Diego v. Miller, 13 Cal. 3d 684, 687 (Cal. 1975)

BDGs 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: LiensEasements

Client Goals What are the clients goals for taking? –Time California law provides a specific process for taking property. What is MTAs 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 owners 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 pre- condemnation appraisal. Offer cannot be less than the Buyers appraisal amount of the fair market value –Note: reductions may apply (environmental impact/contamination, etc…)

Negotiations & Offer to Purchase (contd) 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 (contd) Also… –Along with the written offer, Buyer must provide seller with: Information packet, which outlines the process of eminent domain; and Owners 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 (contd) 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 (contd) 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, 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 (contd) 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 Californias Eminent Domain laws).

Court Proceedings (contd) 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 (contd) 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 (contd) 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