Eminent Domain and Inverse Condemnation

And The Beat Goes On . . .

The Associated Press is reporting that the American Civil Liberties Union (“ACLU”) filed suit against the Federal Housing Finance Agency (“FHFA”) alleging Freedom of Information Act violations, claiming the agency collaborated with the financial industry (banks) to block cities from using eminent domain to prevent foreclosures.   The ACLU and other groups requested information regarding and supporting FHFA’s decision to oppose the City of Richmond’s plan to seize land through eminent domain in order to prevent foreclosures.   The suit seeks an order directing the FHFA to turn over all documents related to communications and meetings with financial industry groups and banks,  including those relating to Richmond’s offer to buy underwater mortgages from residents.

More Municipalities Consider Eminent Domain to Fight Foreclosure

Irvington, New Jersey, is moving forward with plans to become the second municipality in the nation to use eminent domain to buy mortgages that are in foreclosure (see November 15 New York Times story).  Irvington will be performing a legal study of the proposal.  Since 2008, nearly 1,800 homes have been foreclosed in the city of 53,000.  It has an unemployment rate of 12.4 percent.  Even the New Jersey chapter of the ACLU backs the Irvington plan. 

City of Richmond Moves Forward With Eminent Domain Plan For Underwater Mortgages

On September 11, 2013, the Richmond City Council voted 4-3 to move forward with a controversial plan to aid underwater homeowners by purchasing their mortgages at their current market value and reselling them to homeowners at reduced prices and mortgage payments through the power of eminent domain.  Richmond is the first city to pursue this strategy (San Bernardino considered using it and decided not to).   Richmond recently voted to make offers to buy underwater mortgages, if lenders refuse, the city will take them by eminent domain and worked with a group of friendly investors (Mortage Resolution Partners, or MRP) to refinance the loans with the Federal Housing Administration. 

Pomona Considers Use of Eminent Domain As Life Vest For Underwater Mortgages

Mortgage Resolution Partners’ one year agreement (with automatic renewals) to provide the City of Pomona with identifying and obtaining proposals from institutions that can lend funds to the city for restricting/refinancing programs; providing legal counsel and research to assess and implement assistance and mortgage acquisition programs; and creating criteria to be used in identifying mortgages that might benefit from relief programs was approved by the City Council  earlier this month.

San Bernardino Shelves Eminent Domain Mortgage Plan

Late last week, the County of San Bernardino and two of its cities abandoned a proposal to use eminent domain (the power to condemn) to seize troubled mortgages and write down debt for homeowners.  San Bernardino was among the hardest hit by the housing bust with tens of thousands of homeowners in underwater mortgages.  The decision strikes a blow to an idea that garnered national attention as a potential, if controversial and some argue unconstitutional, solution to the mortgage crisis.  Criticism of the plan came from the mortgage industry, Wall Street groups and bankers, who argued that it would spark lawsuits, higher interest rates and a tightened market for borrowers.  Eminent domain is used to seize land for public projects and public use – such as roads, utilities and transit systems.  The San Bernardino County effort would have been the first widespread attempt at using eminent domain to seize residential mortgages.   The City of Chicago rejected a similar idea last year.  The idea was proposed by the firm of Mortgage Resolution Partners in San Francisco.  The group is still talking with more than 30 other jurisdictions across the country.  Representatives of homeowners in need were disappointed in the County’s decision noting a creative solution to the mortgage crisis must be found soon.        

Supreme Court Decides Temporary Flooding Takings Case – No Automatic Exemption

The Supreme Court of the United States reversed and remanded Arkansas Game and Fish Commission v. United States (568 U.S. ____ (2012)) finding that government induced flooding temporary in duration gains no automatic exemption from the Takings Clause.  The Court explained that takings claims turn on situation-specific factual inquiries.  Takings temporary in duration can be compensable. However, because the Federal Circuit Court rested its decision entirely on the temporary duration of the flooding, it did not address the other challenges to the trial court’s fact findings including causation, foreseeability, substantiality and the amount of damages.  These issues remain open for consideration on remand.  

US Supreme Court Hears Arguments On Temporary Takings

On October 3, 2012, the Supreme Court of the United States heard oral arguments in a case whose outcome may change federal takings and the just compensation owed property owners subjected to a temporary physical taking by the government.  In Arkansas Fish & Game Commission v. United States (No. 11-597), the court is considering whether the temporary but reoccurring downstream flooding events, caused from periodic dam releases by the Army Corps of Engineers over a period of six years, constitutes a “taking” of property warranting payment of just compensation.  

Virginia Passes Eminent Domain Constitutional Amendment

In 2007, responding to the backlash against the Supreme Court decision (KELO v. City of New London) allowing the government to use the power of eminent domain for economic development, Virginia passed a law restricting that power. On Tuesday, the State of Virginia went even further and passed a state constitutional amendment that requires the government to compensate landowners and business owners not only for the value of condemned property, but for lost benefits and lost access to their property. Opponents of the amendment believe the amendment is an overreaction to Kelo and fear that the new law will open up a Pandora's Box of litigation that leaves taxpayers footing the bill for claims of "lost profits" arising from street widenings to street closures during parades and festivals. Proponents of the law agree that "lost profits and lost access" could end up making roads and other projects more expensive to build.

As of June 2012, 44 states have enacted some type of reform legislation in response to the Kelo decision, according to the National Conference of State Legislators. Of those states, 22 passed laws that severely inhibited the takings allowed by the Kelo decision, while many enacted laws that placed some limits on the power of municipalities to invoke eminent domain for economic development. In 2008, California passed Proposition 99 adding a constitutional amendment which basically set forth existing state law that public entities could not condemn private property that is owner-occupied to transfer to a private person/developer (except under specific circumstances such as an emergency).

And The Sign Came Tumbling Down . . .

In a recent inverse condemnation action, the owner of a “wallscape”[a billboard sign on the side of a building], West Washington Properties, LLC, argued that the California Department of Transportation (“Caltrans”) was barred from enforcing the Outdoor Advertising Act (Business and Professions Code section 5200, and following) (“the Act”), because it had not issued a notice of violation of the Act in the 20 years the sign had been on display on the building.  The lower court rejected these arguments and the court of appeal affirmed.   (See, West Washington Properties, LLC v. California DOT (Oct. 10, 2012) Cal.App.4th, No. B233295)

The wallscape had been on display since 1984 without a permit.  West Washington Properties purchased the building in 1999 in part based upon the over $12,000,000 the sign was valued to be worth over the years of future advertising.  In 2006, a Caltrans field inspector took note of the sign and determined it violated the Act because it required, but did not have, a permit and it was too large given its proximity to the interstate. West Washington argued that Caltrans was barred from issuing the violation or requiring a permit because it had been over five years since the sign was erected and therefore the sign was presumed to be legal and on the grounds of equitable estoppel [reliance on lack of permit].  

Acceptance of Final Demand In Condemnation Did Not Give Rise To Litigation Expenses

Some states require the government to pay for all of the costs incurred by a property owner when it condemns land, however, California Eminent Domain Law only requires a public agency to pay for attorney's fees and litigation expenses when a court finds "that the offer of the plaintiff [public entity] was unreasonable and that the demand of the defendant [the property owner] was reasonable viewed in the light of the evidence admitted [at trial] and the compensation awarded [judgment]. . . ." (Cal. Code of Civil Procedure section 1250.410.) In a recent case, Cal. Dept. of Transportation v. Menigoz, the State accepted the property owners' statutory "final demand" several days before the scheduled trial date, resulting in a stipulated judgment. Upon the judgment being entered, the property owners' moved for their litigation expenses (attorneys' fees, experts' fees, trial preparation costs, etc.). The court granted the motion, in part, because the parties had spent considerable expense in preparing for trial.

Amount of Money Public Agency Willing to Pay For Real Property Is Permitted In Closed-Session

California's Attorney General, Kamala D. Harris, has issued an opinion which confirms that the real-estate-negotiations exception to the open meeting requirements of the Ralph M. Brown Act permits discussion in closed session of:  (1)  the amount of consideration that the local agency is willing to pay or accepting exchange for the real property rights to be acquired or transferred in the particular transaction [the negotiator's authority regarding the price]; (2) the form, manner, and timing of how that consideration will be paid; and (3)  items that are essential to arriving at the authorized price and payment terms, such that their public disclosure would be tantamount to revealing the information that the exception permits to be kept confidential [the negotiator's authority regarding the terms of payment].

Cite: 2011DJDAR 18488, Filed December 27, 2011

City's Land Use Restriction Found to be "Spot Zoning" and a Constitutional Taking

A California Court of Appeal affirmed a trial court's conclusion that the City of San Clemente's zoning of "Residential, Very Low Density" ("RVL") on an undeveloped 2.85 acre parcel in the middle of a residential tract otherwise zoned "Residential, Low Density" ("RL") constituted a constitutional "taking." The RVL designation limits parcels to one dwelling per 20 acres while the RL allows at least four dwellings per acre. Back in 1983, the City had originally approved plans to subdivide the parcel allowing for four single family lots, however, the construction never occurred. Neighborhood opposition desired the parcel to be declared "open space." A decade later the City amended its general plan to create the RVL zoning and impose it on several properties, including the subject property. All the parcels surrounding the subject property were and continued to be zoned RL. None of the owners of the parcel found out about the downzoning until 20 years later. After hiring a civil engineer to help them again try to develop the property, the owners submitted a development application to build four dwellings (seeking a general plan amendment, zoning amendment, tentative parcel map, site plan permit, conditional use permit and variance), the application was denied with the city council later approving the denial.

The owners served a writ of mandate alleging, in part, inverse condemnation based on spot zoning of the property. The trial court granted the writ concluding that the City did not give adequate notice of the downzoning, the RVL restrictions were arbitrary and capricious as applied to the property, and the owners' suit was timely under the applicable statute of limitations. The writ declared the City's resolution denying the owner's land use application null and void and ordered the City to adopt a new resolution. The inverse condemnation trial resulted in a judgment of "just compensation" in the amount of $1.3 million dollars. The court of appeal affirmed the writ and judgment but remanded to allow the City to decide which action it desired to do - - either pay the compensation, or, allow the property owners to develop the property under a new resolution.

For the full decision see Avenida San Juan Partnership v. City of San Clemente (December 14, 2011) 2011 DJDAR 17887.

DWR Seeks To Aquire Temporary Easements to Conduct Soil Surveys for Delta Plan

Under California Eminent Domain Law, public entities may petition a court for an order to enter private property in order to take photographs, studies, surveys, tests, samplings, or engage in similar activities reasonably related to acquisition or use of the property for the proposed project use. (Cal. Code of Civil Procedure sections 1245.010 and after.) Such petitions are usually granted with a defined and limited scope of activities and timeline.

California's Department of Water Resources ("DWR") has been trying to enter private land to conduct soil surveys related to the Bay Delta Conservation Plan and the canal/tunnel water diversion project. DWR attempted to obtain permission to enter from the land owners. One-hundred and fifty Delta property owners who oppose the project filed lawsuits and a court limited DWR's ability to access the private land for the surveys. In response, DWR is taking the unusual step of moving forward with acquiring the temporary easements (and 16 square feet of land in full ownership) necessary to conduct the surveys and has made offers of compensation to the affected landowners. Such steps are necessary if DWR's Board ultimately decides to use eminent domain to acquire the easements and land.

Public Entity Appellate Victory in Roadway Flooding Case

On August 24, 2011, the California Court of Appeal found in favor of San Bernardino County in an inverse condemnation case based upon flooding caused by water run-off from a County road.  The plaintiffs' properties had been damaged during two separate storms, and the plaintiffs contended that an unimproved County road caused the damage in one storm, and K-rail placed by the County on an improved portion of the same road caused damage during the other storm.  In affirming the trial court's findings in favor of the County, the Court of Appeal confirmed th

Right to Compensation for Loss of Business Goodwill may be Assigned

A California Court of Appeals has reversed a trial court which held that the assignment of the right to receive goodwill compensation from the operator of a business to the franchisor was ineffectual. In Galardi Group Franchise & Leasing , LLC v. City of El Cajon (June 8, 2011), the operator of a Wienerschnitzel and the franchisor ("Galardi") ented into a franchise agreement and later executed an assignment in which the operator waived his right to compensation, and assigned any claim, for lost business goodwill to Galardi. The City acquired the premises for a police facility in 2007. Galardi and the operator tried to preserve the goodwill by relocating the restaurant, however, they were unsuccessful.

Mobile Home Rent Control Ordinances Still a Viable Option in California

Attorney Authors: 

On May 17, 2011, the U.S. Supreme Court refused to hear a developer’s challenge to the City of Goleta’s mobile home rent control ordinance, ending a long court battle over the future of the high value real estate and the validity of rent control regulations for mobile home parks in California.  (See Guggenheim, et al. v. City of Goleta, 598 F.3d 1061 (9th Cir.(Cal.) Mar 12, 2010), cert denied --- S.Ct. ----, 2011 WL 884881, 79 USLW 3554 (U.S. May 16, 2011).)  In December, an en banc panel of the Ninth Circuit upheld the ordinance, rejecting the Guggenheim’s regulatory takings claim finding that none of the three factors for establishing a regulatory taking, set forth Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), were satisfied.  (Click here to read prior post on Ninth Circuit ruling.)  This decision affirms the validity of rent control regulations as a tool for municipalities to provide housing options for lower income residents. 

Mobilehome Park Rent Control – the Battle Continues

Attorney Authors: 

The battle between private property owners and municipalities over the constitutionality of rent control ordinances for mobile home parks wages on. Owners of a mobilehome park in the City of Goleta, the Guggenheims, have filed a petition for certiorari seeking U.S. Supreme Court review of the Ninth Circuit’s rejection of their Fifth Amendment takings claims in July 2010. Their petition asks the Supreme Court to reverse the Ninth Circuit’s decision and find that the City’s ordinance caused a taking of their property. (Click here to see the Guggenheim v. City of Goleta petition for certiorari.)

In 1997, the Guggenheims purchased the mobilehome park subject to rent control under a County ordinance. The ordinance was adopted by the City of Goleta when it incorporated in 2002. The Guggenheims promptly sued the City claiming the rent control ordinance caused a taking of their property without payment of just compensation. The trial court granted summary judgment for the City, but a three judge panel of the Ninth Circuit reversed in a controversial decision. The Ninth Circuit granted the City’s request for a rehearing en banc and affirmed the trial court decision in favor of the City.

The Guggenheims’ argue that the Ninth Circuit’s en banc decision conflicts with the Supreme Court’s holding in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), conflicts with decisions from other federal and state appellate courts and is “a major blow to private property rights.” In essence, the Guggenheims seek to restrict the authority of local governments to adopt land use regulations affecting private property unless the government compensates the property owner, and/or any subsequent owner, for any economic impact of the regulation either at the time of adoption or at any time in the future.

Three-Year Statute of Limitations Confirmed for Inverse Condemnation Causes of Action

In Bookout v. State of California, 2d Civil No. B214906, the California Court of Appeal, Second Appellate District, confirmed that a three-year statute of limitations applies to a cause of action against a public entity for damage to private property based upon a theory of inverse condemnation. In the case, the appellant filed suit against Caltrans, San Luis Obispo County, the Oceano Community Services District and Union Pacific Railroad in 2006, alleging that they had caused his property to flood, which resulted in damage sometime in 2002 or before. In finding at trial that the appellant's case was time-barred, the trial court noted that for inverse condemnation causes of action, the three-year limitations period under California Code of Civil Procedures section 338(j) generally applies, and a five-year statute of limitations applies only where a public entity has physically entered and exercised dominion and control over some portion of the plaintiff's property. Additionally, the trial court found that the appellant's property had not sustained repeated damage incident to a public improvement so as to avail the appellant of a longer limitations period. The Court of Appeal confirmed the trial court's findings in full. This case is a good result for public entities because it confirms that property owners must generally bring suit for inverse condemnation within three years of when the damage to their property occurs. Such lawsuits can be costly for public entities because plaintiffs who prevail in them are entitled to their attorneys' fees.

Gas Station Franchisee Entitled to Independent Claim for Loss of Business Goodwill

The California Department of Transportation (Caltrans) will be required to pay a stipulated judgment ($704,500) for loss of business goodwill to the operator and sub-lessee of a gas station/mini mart whose franchise was terminated as a result of a condemnation by Caltrans. In "The People ex rel. Department of Transportation v. Mercedes Acosta, et al.," (Third App.Dist., C059064, October 26, 2009), the Court of Appeal affirmed that the Petroleum Marketing Practices Act (PMPA) does not limit a franchisee's recovery of loss of business goodwill to an allocation of the compensation recovered by the franchisor.

Caltrans argued that Code of Civil Procedure section 1263.510, which provides for the recovery of the loss of business goodwill in condemnation actions, is preempted by the PMPA (section 2806) whenever the business is a petroleum (gas station) franchisee. Caltrans contended that only a franchisor (such as BP, Shell, Chevron) may claim a loss of goodwill in a condemnation proceeding and that the franchisee is restricted to seeking an apportionment of the goodwill damages recovered by the franchisor.

Both the trial court and appellate court disagreed. The court concluded that the PMPA was enacted to regulate the relationship between franchisors and franchisees, including the termination or nonrenewal of petroleum franchises due to condemnation. Although the PMPA requires an apportionment of business goodwill compensation, if any, received by a franchisor, it does not prohibit a state from enacting law which provides a franchisee the independent ground for recovery of loss of business goodwill. In California, section 1263.510 specifically provides for the recovery of loss of business goodwill under certain conditions - - and it does not limit this right to particular types of businesses.

Month-to-Month Tenant Entitled to Claim Loss of Business Goodwill

Although there is no constitutional right to compensation for business goodwill (benefits that accrue to a business as a result of of its location, reputation, skill and quality of its products and/or employees) in eminent domain proceedings, under California Code of Civil Procedure section 1263.510, the owner of a business conducted on property taken by eminent domain may be compensated for loss of goodwill under certain conditions.

The Court of Appeal, Second Appellate District, has just published a decision in Los Angeles Unified School District v. Pulgarin (filed 6/23/09) holding that there is no requirement in the plain language of the statute that the owner of a business seeking goodwill prove that he or she is the owner of, or has a written lease on, the property being taken: "What is required is that '[t]he owner of a business conducted on the property taken' prove that the loss is caused by the taking of the property." "A business which is required to move because of the taking of the property on which it operates has suffered a loss from the taking. This is true whether the tenancy is for a fixed term, or is a periodic tenancy as in this case.

If not challenged, the Pulgarin decision appears to be inconsistent with another Court of Appeal decision in San Diego Metropolitan Trnsit Dev. Brd. v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517, which held that a business owner has "no enforceable property interest" in the absence of a lease. It may be that the California Supreme Court will need to clarify whether and to what extent a business owner must have a vested, legally compensable property interest in the property being acquired by a public entity, to be entitled to claim loss of goodwill. In the interim, the value of the loss of business goodwill is still affected by the probable remaining term of a tenancy; evidence of no lease or a month-to-month tenancy are still probative elements for the determination of the amount of compensation for loss of goodwill.

Public Project Must Be Identifiable in Resolution of Necessity

Both federal and state statutory and constitutional law mandate that private property may only be taken for a public use. The Courtof Appeal reaffirms in City of Stockton v. Marina Towers, LLC, that if a public entity desires to use eminent domain to acquire private property, an adequate project description is essential for the public entity's governing body to make the required findings of necessity under Eminent Domain Law (Cal. Code of Civil Proc. sections 1240.030, 1245.230.)

In Marina Towers, the City failed to identify a specific project or public use of the property to be acquired until several months after the Resolution of Necessity was adopted and after the complaint for condemnation had already been filed. The Court of Appeal held that the lower court could not rely on the public entity's decisions and use of the land made after the passing of the resolution (identification of the public use and the construction of a public ball park and parking lot). The Resolution of Necessity was fatally defective and the property owner's objections to the City's right to take were upheld. For more, see the entire published case - City of Stockton v . Marina Towers, LLC (2009) 171 Cal.App.4th 93.

Eminent Domain Approved For Project Waiting On CEQA Ruling From Court

Yuba County Supervisors voted to acquire slivers of land from ten property owners through eminent domain on October 21, 2008 even though the Project's CEQA compliance may be in question. The Yuba Count Superior Court had not yet issued its ruling as to whether the Project's environmental impact report complies with CEQA.

Counsel for the property owners opposed the County's adoption of a Resolution of Necessity for improvements to the Highway 20 and Kibbe Road intersection that would create a road arguing that the County did not have a right to pass the resolution given the uncertainty of the court's ruling.

While public entities can use their power of eminent domain to acquire land for a public road, the property owners argument was that the road to be created is not a "public" road, but for private use.

Public Comments on Lodi’s Adoption of Redevelopment Plan

On July 2, 2008, Lodi’s City Council approved a redevelopment area covering more than 2,000 acres, including numerous commercial corridors. The plan could generate up to $2.9 million in the next three years for improvements such as fixing sidewalks, streets and sewers and rebuilding storefronts and programs, such as housing assistance and economic development.

The last time the City considered redevelopment was in 2002, when it adopted a plan, however, it dropped its plan after opponents gathered signatures for a referendum vote. The plan’s inclusion of the right to use eminent domain was a big issue for the public. This time, the approved area does not include the right to use eminent domain.

A response from the San Joaquin County Registrar of Voters as to whether a referendum will be allowed is expected within the next couple of weeks.

www.recordnet.com

First Appellate District Rejects City’s Lease of Public Street Located on Reclaimed Tidelands for Private Use Without Notice and Comment

In Zack’s Inc. v. City of Sausalito, First Appellate District Case Nos. A118244, A118723 (August 11, 2008), the Court of Appeal for the First Appellate District reversed a trial court's judgment, siding with the Plaintiff in a nuisance challenge to Sausalito’s practice of leasing a section of a public street located on reclaimed tidelands for use as a private boat storage facility. The plaintiff had alleged that the storage of boats constituted a nuisance per se, as it interfered with traffic and parking, and effectively prevented the use of the plaintiff’s warehouse as a restaurant.

Proposition 99 Passes; Proposition 98 Fails

With 62.5% of the vote, Proposition 99 was passed by California voters. Proposition 99 was a state initiative to limit the use of eminent domain by local governments, including redevelopment agencies. A competing state initiative, Proposition 98, was rejected by 61% of California voters.

Proposition 99 (known as the "Homeowners and Private Property Protection Act") amends the California Constitution to prohibit local governments from using eminent domain to acquire an owner-occupied residence for the purpose of conveying it to a private person or business entity, such as a developer. "Local government" includes any city, county, redevelopment agency, special district, school district, or other political subdivision of California. "Owner-occupied residence" includes a single-family residence, such as a detached home, condominium or townhouse, that is the owner's principal place of residence for at least one year prior a local government's initial written offer to purchase the property.

A local government may, however, continue to use eminent domain to acquire an owner-occupied residence for public purposes, such as a public works project, protecting public health and safety or remedying environmental contamination. Proposition 99 also does not prohibit the use of eminent domain to acquire non-residential property.

Proposition 99 takes immediate effect (June 4, 2008). Proposition 99 does not apply to an acquisition of an owner-occupied residence by eminent domain if: (1) the initial written offer to purchase the home was made on or before June 4, 2008, and (2) a resolution of necessity to acquire the home by eminent domain was adopted on or before 180 days after June 4, 2008.

To read the text of Proposition 99, click here. For more information about Proposition 99, click here to read the analysis by the California Legislative Analyst.

A Claim for Severance Damages Based on a Temporary Construction Easement Must be Supported By Evidence that TCE Interfered with Owner's Actual Intended Use of the Property

Severance Damages for a temporary construction easement were not allowed by the California Court of Appeal in its recent City of Fremont v. Fisher case (February 28, 2008) 160 Cal.App.4th 666. The Court's ruling was based on the property owner having failed to show that the TCE interfered with their actual intended use of the property. Even though temporary severance damages resulting from the construction of a public project are compensable, the temporary easement must interfere with the owner's actual intended use of the property to present evidence to the jury on temporary severance damages. In the Fisher case, the owner must have presented evidence as to a specific loss attributable to the delay in construction; a claim for such severance damages cannot be based on a hypothetical or conjectural, possible use of the property by the property owner during the TCE.

Sacramento Uses Eminent Domain to Eliminate Blight on Pedestrian Mall Blocks

Last December, the Sacramento Redevelopment Agency approved the use of eminent domain to acquire two key blocks of the "K" Street Mall in downtown Sacramento in order to "revamp" the mall's most run-down stretch. Apparently, the Agency and the property owner had negotiated a complex land swap which called for the property owner to retain some of the property and redevelop it. However, when some of the buildings were demolished after a fire, the deal fell through. The Agency offered the property owner $11.8 million for nine properties but did not receive a response. City leaders hope to still negotiate a resolution but decided to move forward with the filing of the complaint to condemn just in case. Meanwhile, the property owner has several actions against the City, including one challenging the approval of development in the downtown rail yard.

See www.sacbee.com.

Does the City Have Discretionary Use of Eminent Domain or a Contractual Obligation?

To increase the opportunity for land ownership the City of Honolulu enacted Chapter 38. When a sufficient number of condominium unit owners within a complex applied, the City would enter into a contract with each lessee and would agree to pursue eminent domain to acquire the property on which their complex was built and then would convey each condo unit to the lessee in fee simple. The lessees of the Discovery Bay condominium complex applied to the City under Chapter 38. However, after entering into contracts with the lessees, the City Council repealed Chapter 38 and it stopped pursuing eminent domain as promised. The lessees filed suit against the City arguing that the City’s repeal of Chapter 38 impaired the City’s obligation to pursue eminent domain under its contracts.

The District Court held that the lessees could not challenge the repeal because it found that the contracts limited the City’s discretion over the use of eminent domain. The public policy concern is that local governments retain the flexibility to exercise their police powers effectively. The Court of Appeal, however, found that the contracts did not prevent the City from exercising its power of eminent domain within its discretion. The case was remanded for the District Court to determine whether the ordinance repealing Chapter 38 impaired the contractual relationship and whether such impairment was substantial.

Matsuda v. City and County of Honolulu, No. 06-15337 (January 14, 2008), a decision by the Ninth Circuit.

Full text http://www.metnews.com/sos.cgi?0108%2F0615337

Measure Restricting Use of Eminent Domain Qualifies For June Ballot

The first - and far-more reaching - of two competing ballot measures restricting seizures of private property by local governments qualified for the June ballot today and the other is on the verge of making it. The secretary of state's office cleared the "California Property Owners and Farmland Protection Act" after counties checked a sample of intitiative petition signatures. It would prohibit nearly all use of eminent domain to take property for private purposes and is sponsored by a conservative coalition. The rival measure would bar seizure of owner-occupied residences for private purposes and is sponsored by city officials who say eminent domain is needed to complete vital economic development projects. Secretary of state approval for this second measure is expected later today or Thursday.

California Supreme Court Clarifies Respective Roles of Court and Jury During Compensation Trial in an Eminent Domain Action

In Metropolitan Water District of Southern California v. Campus Crusade for Christ, (2007) 41 Cal.4th 954, 161 P.3d 1175, the California Supreme Court held that the property owner has the burden to produce evidence to support a finding that rezoning is reasonably probable. Once that burden has been satisfied, neither party bears a particular burden of persuasion with respect to convincing the trier of fact that the reasonable probability exists or what effect such probability would have on the valuation of the property. The determination as to whether or not there is a reasonable probability of a use change is a question of fact for the jury.


T he Court further held that where the property owner produces evidence tending to show that some other aspect of the taking, such as the risk of a pipeline rupture, naturally tends to and actually does decrease the market value of the remaining property, it is for the jury to weigh its effect on the value of the property, as long as the effect is not speculative, conjectural, or remote.

Court Reverses Ruling Granting an Anti-SLAPP Motion to Strike City's Suit Over Eminent Domain Reform Ballot Initiative

In City of Riverside v. Stansbury, the Fourth Appellate District reversed the trial court's ruling granting defendants' anti-SLAPP motion, thereby allowing the City to proceed with its challenge to a ballot initiative. Defendants had submitted the ballot initiative to amend the City of Riverside's charter, restricting the City's use of eminent domain. The City sued, seeking declaratory relief that the proposed initiative was invalid, as it addressed a matter of statewide concern and was internally inconsistent. Defendants moved to dismiss the City's action under Code of Civil Procedure section 425.16, which provides for a special motion to strike strategic lawsuits against public participation, or "SLAPP" actions. While the trial court granted defendants' motion, the appellate court determined that the City's suit did not arise from any protected activity--rather, it simply disputed the validity of the proposed initiative. Therefore, the anti-SLAPP statute did not apply. The court also noted that granting an anti-SLAPP motion in these circumstances would mean that an initiative's constitutionality could never be challenged prior to the election, which was contrary to law.

It's Back: Eminent Domain Reform

The California Legislature failed to pass proposed legislative changes during the 2007 session. However, it appears as if two initiatives will be heading to voters in June 2008. In response to the initiative sponsored by the Howard Jarvis Taxpayers Association which is basically last year's defeated Prop. 90 resurrected; the Homeowners Protection Act is being circulated for signatures. It is sponsored by the California Redevelopment Association and the California State Association of Counties. The HPA prohibits the use of eminent domain to acquire single-family, owner-occupied homes (including condos and townhouses) for private-to-private transfers of property, however, it does not change the ability of agencies to acquire property for traditional public works projects, utilities and other infrastructures. To read the language of each of the proposed measures, see  the California Property Owners and Farmland Protection Act (CPOFPA) at www.yesonpropertyrights.com and the Homeowners and Private Property Protection Act (Homeowners Protection Act) at the website of the League of California Cities (cacities.org), or the California Redevelopment Association  or at www.eminentdomainreform.com.

Eminent Domain Reform Fails in State Assembly

Assembly Constitutional Amendment 8 proposed by Assemblyman Hector De La Torre (D- South Gate) failed to receive the necessary 2/3 vote in the State Assembly on September 11, 2007. ACA 8 and its companion statutory measure, Assembly Bill 887 (De La Torre), are backed by a broad coalition of homeowner groups, small business organizations, taxpayer groups, labor, environmental, community, and ethnic organizations. The amendment would have protected homes, churches, small businesses and farmland against eminent domain for redevelopment purposes or that would transfer the property being acquired by the public agency to a private person (developer).  The League of California Cities supported the amendment. Several initiatives for similar reforms and amendments are currently being circulated for signatures to be placed on the 2008 ballot.

Court of Appeal Upholds Constitutionality of CCP Section 1260.040

In Dina v. People ex rel. Department of Transportation (Caltrans) 2007 Cal.App.LEXIS 932, the Court of Appeal upheld Code of Civil Procedure section 1260.040's constitutionality and explained how it can be applied, including its use to determine liability in an inverse condemnation action. In the underlying case, property owners claimed that as a result of the noise and vibrations from an adjacent freeway extension project, their homes suffered structural damage and erosion. They filed complaints for inverse condemnation, nuisance and negligence.

Section 1260.040 provides a mechanism for parties involved in eminent domain and inverse condemnation actions to obtain early resolution of a dispute regarding evidentiary or other legal issues affecting the determination of compensation prior to trial (60 days before trial). It is not to be used to determine "just compensation," which is solely the duty of the trier of fact. Rather, the section's motion procedure allows the court to address complex and tricky evidentiary issues that could confuse or be missed by a jury.

Areas/issues that the procedure can be used for include:  Impairment of access; Probability of a zone change; Existence of a larger parcel; Entitlement to precondemnation damages; and Determination of liability for inverse condemnation.

The Court in Dina held that Caltrans' motion to dismiss an inverse claim pursuant to section 1260.040 was proper and akin to a motion for nonsuit; the Court of Appeal reviewed the case using the standard of review applicable to appeals from the nonsuited party.

California Cities Focus on Infrastructure Improvement Projects

The League of California Cities’ Legislative Action Days took place on May 16-17 in Sacramento. More than 450 representatives from California cities attended the two-day event, which featured an update on legislative issues and time for lobbying at the State Capitol. L eague President Maria Alegria, Mayor of Pinole, kicked off Legislative Action Days by welcoming everyone to Sacramento followed by Executive Director Chris McKenzie’s update on the organization’s strategic goals and priorities. Issues of importance to local government, including infrastructure, housing and healthy communities were discussed. For more about this post, click here.

Deposit of Probable Just Compensation Fixes Date of Valuation in Eminent Domain Cases

In Mt. San Jacinto Community College v. Superior Court (2007) 2007 WL 528655 (No. S132251), the California Supreme Court upheld the constitutionality of Code of Civil Procedure section 1263.110, which provides if a public agency deposits the probable amount of compensation to be awarded in the action, based upon an appraisal and determined by the court, the date of valuation (to be used at trial) is the date on which the deposit is made. The court noted that once a deposit is made, the property owner may petition the court to "determine or redetermine" whether it equals the probable compensation that will be awarded. If the deposit is increased, then the original deposit is void and will not be used to determine the date of valuation (section 1263.110(b)).

The court declined to apply Saratoga Fire Protection Dist. v. Hackett (2002) 97 Cal.App.4th 895, where the Court of Appeal held that section 1263.120 (if issue of compensation brought to trial within one year of filing, date of valuation is date of filing) was unconstitutional as applied (trial commenced 11 months after filing and during that time fair market value of property increased from $2 million to $3.2 million). The court in Saratoga held that section 1263.120 had to be disregarded to ensure the owner received just compensation at the time payment was tendered and the property actually taken (p. 905-906). In contract, the public agency in Mt. San Jacinto deposited the probable amount of compensation well before trial, which the property owner had the option of withdrawing.

Arroyo Grande Drops Condemnation of Gravesites

The solution to traffic problems at the Brisco Road interchange remains to be decided after the use of eminent domain to acquire land and relocate 200 to 250 gravesites for a roundabout has come to a halt. According to City officials, the roundabout option could have mitigated the need to widen the Brisco Road undercrossing at Highway 101 and was a cheaper alternative at $5 million versus $15 million or more for other options. However, Mayor Pro Tem Ed Arnold and Councilman Jim Guthrie and members of the Arroyo Grande Cemetery District opposed the condemnation. The majority of the public comments received were negative. Many people, including those at the City, believed it to be a moral issue. The City will look into other options and select a preferred alternative in late spring or early summer.

Property Owners Sue Federal Government for $12 Million for Inverse Condemnation

Property owners near Coalinga, California, are going to trial in an inverse condemnation action filed against the U.S. Department of Energy. The government used eminent domain four years ago to add a high-tension electrical wire over the property. Owners David Wood and Donald Devine sued two years ago, claiming the power line destroyed their plans to build more than 1,000 homes and a golf course on the property. The property owners are seeking $12 million; the government offered $85,000. The government defends their offer amount because development in the area is unlikely due to its location far from a major city and water issues.

Litigation Expenses Awarded to Defendant Dismissed After Selling Interest Being Acquired by Public Agency

A Court of Appeal in the Second Appellate District in the State of California awarded "litigation expenses" (which include attorneys' and appraisers' fees and costs) to a defendant who was dismissed during the litigation because he sold his property interest (to another defendant) while the action was pending - thus mooting the action against him. The appellate court held Code of Civil Procedure section 1268.610(a) provides that litigation expenses shall be awarded to a defendant whenever "the proceeding is wholly or partly dismissed for any reason."

Although litigation expenses in eminent domain actions are generally not awarded unless the plaintiff's final offer was unreasonable (Code Civ. Proc. section 1250.410(b)) or the case is wholly or partially dismissed (or abandoned), the court reasoned the plain meaning of the phrase "for any reason" includes dismissal of the defendant because he sold his property interest during the litigation of the matter. For the full text see Temple City Redevelopment Agency v. Bayside Drive Limited Partnership (2007) 2007 SOS 474: http://www.metnews.com/sos.cgi?0107%2FB189736

Supreme Court Declines to Hear Eminent Domain Case

The United States Supreme Court bypassed an opportunity to revisit its much publicized 2005 Kelo v. City of New London decision that upheld governmental power to use eminent domain for economic development. Without comment, the Court declined to hear Didden v. Village of Port Chester, a case from New York, that challenged the village's 1999 redevelopment plan and ultimate use of eminent domain to acquire property for development of a run-down 27-acre urban renewal area and replace it with a retail center including a Walgreens. By the time the village was ready to acquire the property in 2002, the property owner had already leased the land to a competing drugstore chain.

Both the Federal District Court in Manhattan and the U.S. Court of Appeals for the Second Circuit dismissed the lawsuit based on the property owner's failure to file his lawsuit within the three-year statute of limitations from the time of the adoption of the redevelopment plan. The property owner had argued the clock did not start running until the village announced it was going to take his property.

City of Newport Beach States Fears of Use of Eminent Domain Are Premature

Apparently, the City of Newport Beach is searching for a site for its new City Hall. The owners of the Newport Center's tennis club fear they may be the site the City is looking for and if they don't sell, the City will use condemnation to acquire their land. The City voted to appraise the land in October and there are claims the City is in negotiations to purchase the property. However, the City counters that talk of using eminent domain is premature - the appraisal has not even been finalized or reviewed by City officials. According to a City Council member, if the land is too costly, the City would not be able to pursue plans for such a project.

Eminent Domain Reform Fight Rises Again

Earlier this month, California voters rejected Proposition 90 which would have changed the State's Constitution and all but eliminated redevelopment in California. Now taxpayer advocates have submitted another basically edited Prop. 90 measure for review and a possible 2008 vote they claim will protect property owners from government seizures.  Apparently, the measure, sponsored by the Howard Jarvis Taxpayers Association, allows government seizures for public purposes, but not private development, much like the defeated Proposition 90.

The proposed act is currently at the State Attorney General's Office. If it qualifies by meeting the legal requirements, a title and summary will be issued. Then supporters will begin collecting the signatures needed to qualify it for the 2008 ballot. Stay tuned.

For further information please see the LA Daily News - http://www.dailynews.com/ci_4718127

New Limits on Eminent Domain Pass in Numerous States

While voters in California rejected Proposition 90 (which would have changed the State's Constitution and limited the use of a public entity's power to condemn) last Tuesday, ballot measures to limit eminent domain powers were passed in eight other states. Right now, 34 states have adopted laws or passed ballot measures in response to the Supreme Court's 2005 decision in Kelo v. New London, which upheld the use of condemnation for economic development.

For a further examination of the laws passed in other states, see the New York Times article "Voters Back Limits on Eminent Domain" by Terry Pristin, dated Wednesday, November 15, 2006.

Adjacent Private Property Owners Cannot Claim Ownership of Street Dedicated in 1888 But Which Only Exists on Map

Under the common law of the State of California, where a private road has been offered for public dedication, the offer may be accepted by formal action of the public entity or by public use. In the recent case of Wright v. City of Morro Bay, 2006 DJDAR 14782, the California Court of Appeal affirmed a San Luis Obispo Superior Court's dismissal of a complaint for quiet title in which the plaintiffs' claimed to be the fee owners of a portion of the dedicated street abutting their property because the street was never opened or used for a public purpose and only existed on paper.

The dedication of the street occurred in 1888, and the City apparently adopted a resolution accepting the offer in 1935, but never opened the road. The City filed a demurrer to the plaintiff's quiet title action. Plaintiffs countered with a motion for summary judgment. The Superior Court sustained the demurrer without leave to amend and dismissed the summary judgment as moot.

Plaintiffs relied upon Code of Civil Procedure section 771.010, enacted in 1955, 20 years after the City formally accepted the offer to dedicate. Section 771.010 provides that there is a conclusive presumption a proposed dedication has not been accepted if the four conditions set forth in the statute are met, which include:: the proposal of dedication was made by filing a map only; no acceptance of the dedication was made or recorded and no public use within 25 years after the map was filed; and, finally, the property was sold to a third party after the map was filed, who used it as if it was free of the dedication.

The Court rejected the application of section 771.010 because the statute operated prospectively, the City formally accepted the dedication in 1935, and the complaint alleged that the land was not used for any purpose, public or private.

Gov. Schwarzenegger Opposes Prop. 90

Governor Arnold Schwarzenegger announced his opposition to Proposition 90 on Tuesday in a letter sent to the San Francisco Chronicle.  The Governor argues against Prop. 90 because "it threatens to increase costs for taxpayers by billions of dollars each year"; would "allow any landowner, business or enterprising trial lawyer to sue the government and its taxpayers any time a state or local agency passes a lw that someone claims has resulted in "substantial economic loss" to their property;" would "allow potential payouts of taxpaer dollars over new laws and regulations intended to protect open space and the environment; laws and regulations intented to protect consumers; and laws and regulations designed to restrict undesireable businesses in residential neighborhoods."  You can read the entire letter on the newspaper's website at www.sfgate.com.

Grant of Easement Construed in Favor of Public Entity

A California Court of Appeal held that ambiguities in a public entity's grant of easement to a private party must be construed in favor of the public entity. Red Mountain, LLC v. Fallbrook Public Utility District (2006) 114 Cal.App.4th 333, involved both an inverse condemnation claim and an eminent domain case arising from Red Mountain's plans to develop its vacant land adjacent to a drinking water reservoir and the District's refusal to grant an access easement over the road through the reservoir.

The District owned the reservior and a non-exclusive easement of the area of the water-shed for a sanitary easement. The District claimed there was no inverse condemnation because Red Mountain did not have any rights based upon its sanitary easement. Citing Civil Code section 1069, the court held that the trial court's interpretation of the easement was erroneous and that it must be construed in the District's favor passing only those rights and interests to the grantee that are necessarily and expressly embraced in its terms. The matter was ordered for re-trial on the issue of inverse condemnation, if any, and damages.

New York Real Estate Mogul Backing Prop. 90

Howie Rich and his tax-exempt "advocacy" groups have contributed 92 percent of the money supporting California's Proposition 90 which, if passed, prevents public agencies from using the power of eminent domain to acquire land and transfer it to a new owner, such as a developer, for redevelopment purposes and requires the government to pay for passing any law which "devalues" private property; opponents of the law argue it will make it impossible for cities to plan developments and protect the environment. Rich and his groups have lobbied and tried to put similar initiatives on several other states' ballots - including Michigan, Missouri, Montana, Nevada, and Oklahoma - but for various reasons, including signature gathering fraud - they were removed from the ballot.

In the Thursday, October 5th, San Francisco Chronicle article "Mogul's Network Bankrolls Prop. 90", the newspaper states that "nearly $3.4 of the $3.6 million raised in support of Prop. 90 came via five entities that Rich either leads or has helped fund in the past."

Questions about the purpose of these groups have risen in light of their tax-exempt status and failure to file paperwork declaring their official purpose.  Various watchdog organizations have urged the IRS to investigate possible tax abuses.

For more information, please read the San Francisco Chronicle article. http://sfgate.com/chronicle/

CITY OF SAN DIEGO WINS REVERSAL IN INVERSE CONDEMNATION CASE

The City of San Diego won a reversal on two inverse condemnation claims, reversing the $65.3 million dollar judgment against it . (Border Business Park, Inc. v. City of San Diego, Sept. 1 9, 2006, Fourth Appellate District, Div. Two, E035881).

Border Business Park is a real estate development company which was developing a business park in Otay Mesa (an unincorporated area in San Diego County annexed by the City). Border alleged two inverse condemnation claims against the City . The first was a "Klopping" claim alleging that unreasonable "pre-condemnation" actions taken by the public agency directly affect ed the landowner to its detriment . According to Border,  the City acted unreasonably by "announcing" it was considering developing an international airport in Otay Mesa which went directly through Border's ( and other land owner's) property. The second inverse condemnation claim alleged that the City substantially impaired access to the business park by diverting truck traffic in such a way that the traffic backed up so no one could drive in or out of the park. Border alleged the congestion was so bad it was affecting sales of the property by preventing access to or limiting the number of prospective tenants. The jury awarded Border a total of $94.5 million dollars -  $25.5 million in damages for the City's airport planning activities; $39.8 million for the truck traffic; and $29.2 million for the City's breach of the development agreement with Border.

The City filed a motion for new trial on all three claims. The trial court granted the City's motion on the issue of the breach of contract. The City then appealed the judgment. On Border's Klopping claim, the City argued that Border failed to present evidence of an announced intention to condemn the property, and that the claim, therefore, failed as a matter of law. The City also argued that Border, like numerous other land owners in the vicinity, did not suffer a "distinct or unique injury" as the law required. On Border's second inverse claim, the City argued that the evidence did not support Border's position of complete "gridlock" and virtually no access. Rather, the City argued that the evidence showed that traffic flowed, albeit slowly at times, and there was always at least one access to and from park.

The court of appeal reversed the judgment.  On Border's Klopping claim, the appellate court did not determine whether an announcement of an intent to condemn is required. But, the appellate court did agree with the City in holding that there was "no evidence that the airport proposal directly and specially affected Border, as opposed to the entire area of Otay Mesa within the proposed airport site...."  As to the second inverse claim (relating to the traffic congestion and affect on access), the appellate court found that the evidence failed "to show that there was ever a time when there was no access by means of at least one entrance to the park" and "interference with access which merely requires greater "circuity of travel" is not compensable."  Finally, the court upheld the lower court's decision granting the City's motion for a new trial on Border's breach of contract claim.

According to press reports, Border is planning to petition the California Supreme Court for review of the appellate court's decision.

F or more information about this case, please contact David Skinner at (510) 808-2000 or dskinner@meyersnave.com.

For more information regarding "Klopping" claims, see the seminal case, Klopping v. City of Whittier, 8 Cal.3d 39, 52 (1972).

Claudia J. Gorham, Eminent Domain Department

Could California's Eminent Domain Reform Prop 90 Give Rise to Thousands of Claims as Oregon's Reform Measure? The Debate Heats Up

Since the U.S. Supreme Court's decision in Kelo, more than 30 state legislatures have either passed or considered laws limiting the government's use of eminent domain (the right to condemn private property for public use). Now, six Western states, including California in November (Proposition 90), have ballot initiatives to reform eminent domain.

The Pro-Prop 90 backers argue that drastic reform to the California state's constitution is necessary to stop the over use and abuse of eminent domain in the state. The anti-90 group argues that the proposition is too far reaching, too drastic and will have a significant and negative effect on land use, the environment, development, and affordability of even the most simple road widening project.

Oregon passed a similar measure (Measure 37) in 2004. At the time, Oregon had some of the toughest land-use regulations in the nation. However since, Measure 37, many longtime landowners have escaped regulations for protecting landscapes, the environment and neighborhoods. Oregon property owners have already field about 2,700 Measure 37 claims, aiming to develop about 143,00 acres. The claimants demand that the governments either waive the land-use restrictions or pay nearly $4 billion in compensation (for "taking" their land). In almost all of the claims settled to date, governments have ended up waiving the regulations.

To learn more about Proposition 90 please go to www.noprop90.com and www.90yes.com.

Claudia J. Gorham

Eminent Domain Department

Napa to Buy City Block for New Stores?

News that the City of Napa has been in confidential negotiations with the property owner of most of an acre of downtown commercial property surfaced on Tuesady after a closed session during which the terms of a possible purchase were discussed. The City has been attempting to promote mixed commercial-housing projects in downtown as a way of adding economic vitality to the area. None of the commercial tenants located in the area had any knowledge of the talks and one restaurant owner stated he recently extended his lease.

Cities and counties across the country have been using condemnation to promote ecomonic development to revitalize their communities. Californians will be called upon to vote on Proposition 90 this November to change the State's Constitution to prohibit such acquisitions.

Ohio High Court Says City Can't Take Property For Economic Development

While the Ohio legislature is set to review and recommend sweeping changes to the State's eminent domain law, the Ohio Supreme Court has struck down the City of Norwood's attempt to aquire land for a $125 million shopping center and office complex. Three residential property owners fought the project and refused to sell to the developer. The City ws counting on $2 million a year in additional revenue. The property owners argued that the City should not be allowed to take their property and then give it to a private developer.

Supreme Court Clarifies Test for when Private Property is “Taken”

In Lingle v. Chevron, Chevron challenged a Hawaii law limiting rent charged to dealers leasing stations. Hawaii hoped the law would keep retail gas prices reasonable. Chevron alleged it was an unconstitutional taking because it failed to substantially advance legitimate state interests. Hawaii courts agreed, concluding the law would not substantially reduce costs or retail prices, as oil companies would simply raise gas prices to offset the lower rents. Prior to this case, the Supreme Court held that a government regulation of private property “effects a taking if it does not substantially advance legitimate state interests,” which lower courts interpreted as a separate freestanding takings test, independent of traditional tests that focused on the impact of the government action on the property . The Hawaii courts based their decision on this test.

The Supreme Court reversed, abolishing the “substantially advances” takings inquiry, stating it “reveals nothing about the magnitude or character of the burden a particular regulation imposes upon private property rights.” Instead, the proper inquiry is to identify regulations whose effects are “functionally equivalent” to taking claims where the “government directly appropriates private property or ousts the owner from his domain.” The “substantially advances” formula necessarily forced courts to substitute their predictive judgments for those of elected legislatures and expert agencies and was thus unworkable.

The Supreme Court did reaffirm that property owners can still challenge regulations by alleging: (1) a physical taking of the property; (2) Lucas type - regulatory taking (denial of all economically beneficial use of property); (3) Penn Central - economic impact taking (which examines the economic impact of the regulation and the degree to which it interferes with investment backed expectations); and (4) Nollan & Dolanland use exaction taking (government demands property in exchange for granting discretionary permit it otherwise could deny).

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Eminent Domain Power Set For Ballots

It's beginning to look as if Californians will be asked to vote later this year to reform the laws of eminent domain - and do a lot more to protect private property rights. Several separate ballot measure drives have begun, and sputtered, since a U.S. Supreme Court decision last year confirmed the power of government to force the sale of private property then transfer that property to another private owner for development.

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Litigation Likely Over Monterey County Ballot Measure Foes of a golf subdivision in Rancho San Juan outside Salinas said Monday they will seek court protection of a June ballot measure against the project if Monterey County supervisors today block the pending referendum election.

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