Handling the eminent domain process (general)

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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. This presentation details how the law firm Bergman Dacey Goldsmith handles Eminent Domain Cases.

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Handling the eminent domain process (general)

  1. 1. Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  2. 2. Handling The Eminent Domain Process Bergman Dacey Goldsmith, APLC Greg M. Bergman Brian J. Bergman 10880 Wilshire Boulevard, Suite 900 Los Angeles, California 90024 (310) 470-6110 (w); (310) 474-0931 (f) www.bdgfirm.com gbergman@bdgfirm.com bbergman@bdgfirm.com Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  3. 3. 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) Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  4. 4. BDG’s 4 Step Approach toHandling Eminent Domain CasesInitial StepsPre-Condemnation Negotiation & OfferResolution of NecessityCourt Proceedings Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  5. 5. Initial StepsAssemble a teamIn-Depth ReviewPerform title investigationIdentify goalsInitiate contact Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  6. 6. The TeamInclude all relevant players– Client– AttorneysWho else?– Appraiser– Environmental consultants– Technical consultants Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  7. 7. In-Depth ReviewWhat actions have been taken to date?Environmental Impact ReportMinutes of prior negotiationsAppraisalsPrior public findings? Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  8. 8. Title InvestigationWhat encumbrances are there on theproperty to be taken, if any?Get a preliminary title report as early aspossible.– Things to look out for: Liens Easements Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  9. 9. Client GoalsWhat are the client’s goals for taking?– Time California law provides a specific process for taking property. What is MTA’s 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? Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  10. 10. Making the Initial ContactFirst impression is a lasting impression– Sets tone– Posture/Strategy Keeping in mind informal resolution v. litigationExpress interest in the propertyDiscussion items:– Schedule– Appraisal date– Assessment date Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  11. 11. Pre-Condemnation AppraisalAppraise the property, including allimprovements– Effective January 1, 2007, the public entity must also pay for the property owner’s appraiser, up to $5,000.Conduct applicable environmentalassessments.– Can get Court order for access to property if landowner will not provide access voluntarily. Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  12. 12. Negotiations & Offer to PurchaseOffer to purchase is made to the OwnerBuyer is required to make a full price offerat the amount stated based on the pre-condemnation appraisal.Offer cannot be less than the Buyer’sappraisal amount of the fair market value– Note: reductions may apply (environmental impact/contamination, etc…) Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  13. 13. Negotiations & Offer to Purchase (cont’d)Written Offer for purchase must include thefollowing:– 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. Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  14. 14. Negotiations & Offer to Purchase (cont’d) Also… – Along with the written offer, Buyer must provide seller with: Information packet, which outlines the process of eminent domain; and Owner’s rights under the eminent domain laws. Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  15. 15. Resolution of NecessityTo take the property, the public entity must makefindings 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 ofNecessity” that is adopted by the public entity. Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  16. 16. Resolution of Necessity (cont’d) 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 Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  17. 17. Resolution of Necessity (cont’d) 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 Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  18. 18. Relocation AssistancePre-condition to initiation of eminent domainaction 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 $10,000.00 Each reimbursement situation is different, and must be carefully analyzed under the applicable law to determine allowable compensation. Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  19. 19. Court ProceedingsThe last resort… Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  20. 20. Court Proceedings (cont’d)Not all attempts to resolve informally willachieve the desired resultsBDG and its team of experiencedattorneys prepares the Eminent DomainComplaint and serves it on all relevantparties (in accordance with California’sEminent Domain laws). Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  21. 21. Court Proceedings (cont’d)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 Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  22. 22. Court Proceedings (cont’d)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 Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  23. 23. Court Proceedings (cont’d)Last resort settlement attempts:– Final settlement demands– Final settlement offers– California Civ. Proc. Section 998If no settlement reached, litigation willproceed to jury trial. Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  24. 24. TrialJury trial will take place to determine the fairmarket 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? Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  25. 25. TrialPre-trial motions:– Motions in LimineTrialPost-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. Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  26. 26. The End Thank youCopyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved
  27. 27. Copyright © 2012 • Bergman Dacey Goldsmith • All Rights Reserved

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