November 2012

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].  

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).

Attorney Billing Records For Pending Litigation Are Generally Not Exempt From Disclosure

The California Public Records Act (CPRA) contains an exemption from disclosure for records pertaining to pending litigation.  This exemption has been construed narrowly, so that it applies only to documents prepared for use in litigation.  Other records that relate to a pending case, even if they are created only as a result of a pending case, are subject to disclosure unless another exemption applies.

The scope of the CPRA’s pending litigation exemption was clarified in the recent case of County of Los Angeles v. Superior Court of Los Angeles CountyThe County of Los Angeles claimed that all invoices, time records, and records of payment to law firms in a case currently in litigation were exempt from disclosure under the pending litigation exemption.  The Court of Appeal rejected this claim and clarified that attorney billing records pertaining to ongoing litigation are not protected by the pending litigation exemption.