MCLE Self Study Article: Eminent Domain & Inverse Condemnation: 2017 in Review
John C. Murphy and Emily L. Madueno
John C. Murphy
John C. Murphy balances his eminent domain practice between owners and some of the most sophisticated public agencies in the state. His firm earned its owner clients the reportedly largest eminent domain awards in each of the past five years. He helped generate well over $200 Million for owner clients over that time. Mr. Murphy also represents two of the region’s most populous county governments, one of its largest port districts, and the City of Los Angeles DWP. He has authored numerous articles, including for the Appraisal Journal, a chapter in a CEB practice guide, Ground Lease Practice, and a chapter in the ABA textbook Litigators on Experts. He has been chosen repeatedly for inclusion in the definitive legal directory, Best Lawyers in America—most recently in 2018—in two practice areas: eminent domain law and real estate law. He has consistently received Southern California Super Lawyer accolades for more than a decade.
Emily L. Madueno
Emily L. Madueno is a partner at Murphy & Evertz LLP. She focuses her practice on eminent domain and inverse condemnation matters. She balances her practice between landowners and public agency clients. She has written several e-alerts on the latest condemnation opinions as they are issued, and she co-authored the condemnation chapter in a CEB practice guide, Ground Lease Practice. Ms. Madueno has been selected for the last three years as a "Rising Star" in Los Angeles magazine’s Southern California Super Lawyers edition.
I. INTRODUCTION
Lewis Carroll, the 19th century Oxford mathematician and author of "Through the Looking Glass" may have had some foresight into how 2017 would look to eminent domain attorneys.1 An exchange between Carroll’s Cheshire Cat and Alice boils down to this sentiment: "If you don’t know where you are going, any road will get you there."2
In 2017, federal and state courts, including the United States Supreme Court and California state courts, took a variety of roads, or approaches, to deciding cases involving some long-standing, recurring issues in eminent domain. The common issues included regulatory takings, valuation of just compensation, precondemnation activities, and questions of public use. Not surprisingly, a review of these eminent domain opinions reveals no consensus on the future of eminent domain case law.
Common themes do recur in the case law, however. The cases discussed in this article demonstrate the common themes from 2017 across the country. This article covers all four California eminent domain and inverse condemnation cases decided in 2017, as well as a selection of non-California cases that reflect the year’s common themes. This article does not attempt to discuss all such cases decided across the country. Non-California cases solely involving interpretation of another state’s statutes without wider application to California law,3 for example, are not included as they are less likely to be applicable for California practitioners.
It is useful to consider some data regarding the 2017 eminent domain and inverse condemnation cases. First, courts throughout the nation issued at least twenty eminent domain opinions. About one-third involved inverse condemnation.4 Eleven cases addressed valuation,5 precondemnation activities,6 and public use.7 Second, California Courts of Appeal issued four published opinions,8 but the California Supreme Court issued none. It declined to address any new eminent domain or inverse condemnation issues this year by denying certiorari three times.9 No review was sought in the fourth case.10 Third, three of the four published California opinions dealt with inverse condemnation. Public agencies or public interest groups, not owners, prevailed in each of these three inverse condemnation opinions.11 Fourth, California appellate courts continue to deftly use the ripeness doctrine and other procedural stratagems to avoid reaching the merits on key constitutional issues in inverse condemnation cases.12 Other states’ courts also proved adept at dodging big constitutional issues.13
[Page 6]
This article will review the four published California opinions in some detail. This article also provides a quick summary of other cases from across the country where courts have dealt with issues similar to those that California condemnation practitioners face. The non-California cases offer the California condemnation practitioner ways of arguing commonly recurring issues litigated across multiple jurisdictions, including California.14 The non-California cases also offer the California condemnation practitioner insight into new applications they may face or want to raise themselves.15
II. PUBLISHED CALIFORNIA OPINIONS
A. Surfrider Foundation v. Martins Beach 1, LLC (August 9, 2017)16
1. Facts
The case involved access to Martins Beach located along the San Mateo County coast and nestled in a cove with high cliffs to the north and south.17 Though privately owned and with limited physical accessibility, the beach had a long history of public access.18 In July 2008, billionaire venture capitalist Vinod Khosla purchased Martins Beach, all ninety acres of it, for $32 million, and a year or two later "closed off the only public access to the coast at that site."19
Before closing off access, Mr. Khosla had sued for declaratory relief in 2009, seeking a declaration that he was not required to maintain beach access.20 San Mateo County and the California Coastal Commission demurred; the trial court sustained the demurrers without leave to amend and concluded that Mr. Khosla was obligated to comply with the administrative process provided by the California Coastal Act before seeking a judicial determination of his rights.21 In 2012, an ad hoc group, "Friends of Martins Beach," sued Mr. Khosla seeking to establish a dedicated public easement for beach access.22
This appellate opinion arises, however, from a case that another non-profit organization, Surfrider Foundation, filed. It sought (a) a declaration that Mr. Khosla’s locking the gate or blocking public access to the beach constituted a "development" under the Coastal Act, thus triggering Mr. Khosla’s obligation to obtain a Coastal Development Permit ("CDP"); and (b) a temporary injunction requiring Mr. Khosla to restore public beach access.23
2. Issues
Surfrider presented three issues: (a) Whether Mr. Khosla’s closure of public access amounts to a "development" triggering the need for a CDP under the Coastal Act; (b) if so, whether the CDP requirement survives constitutional challenge under the due process and takings clauses of the state and federal Constitutions; and (c) whether the trial court’s temporary injunction requiring Mr. Khosla to restore public access amounts to a per se taking.24
3. Holding
(a) CDP Requirement
Mr. Khosla’s closure of public access is "development" under the Coastal Act requiring a CDP because it resulted in a significant decrease in access to Martins Beach.25 Blocking public access to a California state beach constitutes a change in intensity of use and/or access amounting to a "development" under the Coastal Act, and hence a CDP is required.26 Although Mr. Khosla argued that the access historically provided had never truly been public access because access had been at the owner’s permission and/or fees were charged, nothing in the statute requires the phrase "access thereto" to mean "free access" or an "established public right of access."27 Mr. Khosla also attempted to argue that this holding would lead to absurd results, such as a CDP being required for temporary events, such as parties or garage sales.28 This ruling may not lead to absurd results, according to the court, because temporary events do not require a CDP and the Coastal Commission has authority to issue discretionary waivers for them.29
(b) Constitutional Challenge to the CDP
The real issue in this case was whether the CDP requirement itself amounts to a taking. The court never got to that question because it found instead that Mr. Khosla’s claim was not ripe. "A takings claim that challenges the application of regulations to particular property is not ripe until ‘the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.’"30 Mr. Khosla had never even applied for a CDP.31 The appellate court, therefore, determined that the constitutional challenge to the CDP requirement was not ripe for adjudication.32
(c) Temporary Injunction
The temporary injunction provided, in part: "Defendants are hereby ordered to cease preventing the public from accessing and using the water, beach, and coast at Martins Beach until resolution of Defendants’ [CDP] application has been reached by San Mateo County and/or the Coastal Commission."33 The court upheld the temporary injunction, finding that it did not amount to a per se taking because it was, by its nature, temporary.34 The court explained that Loretto v. Teleprompter Manhattan CATV Corp.35 and its progeny, including Nollan v. California Coastal Commission36 and Dolan v. City of Tigard,37 require permanence for a taking to have occurred.38
[Page 7]
4. Comment
Surfrider demonstrates the nimbleness with which courts can employ the ripeness doctrine and other procedural steps to side-step constitutional issues.
In a larger sense, a question arises as to how can one square the Surfrider opinion with the undeniable fact that some effectively private beaches do exist in California. Gated residential communities, such as Orange County’s Irvine Cove, Three Arch Bay, and Emerald Bay, exclude the public from reaching the beach on foot or by car via the east. As in the case of Martins Beach, high cliffs bar public access from the north and south of these coves. These gated residential communities differ from Martins Beach, however, in two important ways. First, these three communities all were established well before the adoption of the Coastal Act in 1972, and lack a long history of general public access. Nonresidents had been barred for decades. Second, access to these communities is granted to a large number (hundreds) of homeowners, not reserved for a single billionaire.
B. Mercury Casualty Co. v. City of Pasadena (August 24, 2017)39
Joyce Kilmer observed, "Poems are made by fools like me, but only God can make a tree."40 Although these words may summon visions of verdant, pastoral landscapes, the Mercury Casualty opinion centers on a less picturesque attribute of trees.
1. Facts
On November 30, 2011, hurricane-force winds struck Pasadena, damaging more than 5,000 City-owned trees within the City’s "urban forest."41 More than 2,000 of the damaged trees were uprooted, including a 100-foot tall Canary Island Pine tree that landed hard on the home of Sarah and Christopher Dusseault.42 The Dusseaults’ homeowners’ insurance company, Mercury Casualty, paid them more than $700,000 in insurance benefits.43 Mercury then sued the City, through subrogation, for inverse condemnation alleging the City was liable for the damage because the City had owned the tree.44
The case involved several damning facts against the City: It owned the tree; the tree sat within a public parkway, on land which the City owned and controlled; the tree was one of the 60,000 trees within the City’s "urban forest;" only the City maintained the tree and, in fact, the City prohibited private pruning or maintenance; the City had a procedure to accept reports of issues with trees; and the City had inspected the tree three times between 2006 and 2008.45 The City, however, denied liability for inverse condemnation and prevailed on appeal.
2. Holding
The court held that there had been no taking. A property owner may recover from a public entity in inverse condemnation for "any actual physical injury to real property proximately caused by the [public] improvement as deliberately designed and constructed . . . whether foreseeable or not."46 The public entity "generally is strictly liable for any damage to private property caused by a public improvement as that improvement was deliberately designed, constructed, or maintained."47
A tree can be deemed a public improvement for purposes of inverse condemnation. "[A] tree constitutes a work of public improvement for purposes of inverse condemnation liability if the tree is deliberately planted by or at the direction of the government entity as part of a planned project or design serving a public purpose or use, such as to enhance the appearance of a public road."48 Here, however, the tree could not be considered "a work of public improvement" for three reasons.49
First, there was no record of who had planted the tree or for what purpose it had been planted. The City denied having planted the tree. Other than owning the tree and pruning it, there was no record that the City, acting in furtherance of public objectives, had taken a calculated risk that damage to private property might occur from planting the tree.50
Second, the court noted that there was no evidence of a planned public project, such as a roadway beautification project, which included the tree. Though the City had adopted an ordinance for City-wide protection, maintenance and removal of trees that are part of the City’s urban forest, the ordinance did not convert the tree into a public improvement for inverse condemnation purposes. The City had adopted that ordinance several decades after the tree was planted and, therefore, it could not have any bearing on how or for what reason the tree was planted.51
Third, there was no evidence that the City’s tree maintenance plan established a taking for inverse condemnation purposes. "To establish an inverse condemnation claim based on a government entity’s maintenance of one of its improvements, the property owner must show that the plan of maintenance was deficient in light of a known risk inherent in the improvement."52 Here, the City’s tree maintenance policies met or exceeded all standards used by most other cities. Mercury had not argued otherwise.53
[Page 8]
3. Comment
Initially, it may seem odd that the City would not be liable for the tree. The City did own the tree; the City maintained it according to a fixed schedule; the City accepted responsibility for tree issues; and the City prohibited the public from altering the tree. Moreover, the City presumably qualifies as a proverbial "deep pocket," well-positioned to spread the risk of trees falling among a large population: its residents.
This opinion makes sense, however, in light of two considerations. First, if the court were to hold the City liable in inverse condemnation here, under these circumstances, how would government entities react? We would probably see far fewer trees—especially in city-owned parkways.
Second, Mercury Casualty, an insurance company, may qualify as a better source of compensation, and better spreader of the risk, than even the City of Pasadena. Might the result have differed if the owners, and not their insurance company, had sued?
Finally, the court specifically noted that Mercury had another theory available to it. Mercury could have sued on a tort theory alleging that the City had maintained a dangerous condition. Mercury had not done so.
C. Dryden Oaks, LLC v. San Diego County Regional Airport Authority (September 26, 2017)54
1. Facts
In 2001, Michael Durkin, a developer, purchased two lots adjacent to a runway at the west end of Palomar Airport in the City of Carlsbad.55 The City approved Durkin’s development plans for both lots over San Diego County Regional Airport Authority’s objections.56 The Airport Authority viewed the development as incompatible with the airport.57 Pursuant to the approvals, Durkin completed development of one of the lots in 2005.58
Durkin’s approval as to the other lot expired in 2012, before he had begun any construction.59 In 2013, Durkin re-applied for approval to develop the second, unimproved lot.60 This time, the City denied approval.61 The difference was that in 2010, the Airport Authority had adopted an Airport Land Use Compatibility Plan ("ALUCP") that designated Durkin’s property within a limited development safety zone (Runway Protection Zone, or RPZ) and the City declined to override the Airport Authority.62
Durkin sued the Airport Authority and the County of San Diego in inverse condemnation and for precondemnation damages.63 Durkin claimed that the Airport Authority’s adoption of its Land Use Compatibility Plan, which designated his lots as part of an RPZ, effectively condemned an avigation easement over his lots and allowed for expansion of the airport without paying just compensation.64 He did not sue his erstwhile ally, the City.65 This fact proves important.
2. Holding
The court of appeal held that there had been no taking by either the Airport Authority or the County. The court affirmed the trial court’s entry of summary judgment for the Airport Authority and the County. In doing so, the appellate court provided a review of the law of inverse condemnation and precondemnation damages.66
First, the court confirmed that Durkin’s inverse claim was not based on physical invasion or denial of economically viable use of his property and should be analyzed using the multi factor Penn Central Transportation Co. v. New York City67 test for regulatory takings because Durkin claimed the ALUCP diminished his property’s value.68
However, before undertaking that analysis, the court found that Durkin had failed to satisfy the very first step in any takings analysis: showing that the Airport Authority’s adoption of the ALUCP qualified as "a sufficiently final land use determination" to support an inverse condemnation claim. The Airport Authority "did not have the ability to make a final land use decision with respect to Durkin’s property" and the ALUCP did not qualify as a taking. The City, not the Airport Authority, is the local authority responsible for final land use decisions over Durkin’s property. In fact, theoretically, an airport authority’s land use compatibility plans can be overruled by the local agency, like the City, having ultimate land use jurisdiction. Durkin had sued the wrong entity.69
Second, Durkin’s precondemnation damages claim also failed. In Klopping v. City of Whittier,70 the California Supreme Court held that a property owner must be provided an opportunity to demonstrate that "(1) the public authority acted improperly either by unreasonably delaying eminent domain action following an announcement of intent to condemn or by other unreasonable conduct prior to condemnation; and (2) as a result of such action the property in question suffered a diminution in market value."71 Here, the court held that Durkin failed to provide any evidence of a public announcement of intent to acquire his property. Statements cited by Durkin did not qualify as announcements of intent to condemn because they merely expressed policy statements favoring ownership by airport authorities of property within RPZs, such as Durkin’s, and did not demand condemnation or recommend condemnation in all circumstances.72
[Page 9]
3. Comment
The court expressed no opinion on whether Durkin had any arguable takings claim against the City, but confirmed any claim Durkin may have had would be against the City. As a result, Dryden Oaks offers a helpful discussion of inverse condemnation, but does not add to the law applying the Penn Central test.
Under existing case law,73 the result in Dryden Oaks might also have been different if Durkin could have presented evidence of the City and Airport Authority acting in concert. A public entity without final land use authority can be liable for a taking where it "cooperated" with the entity with final land use authority.74 Dryden Oaks offered some insight into the relationship between the City and the Airport Authority, but it does not discuss cooperation between the two.
D. Central Valley Gas Storage LLC v. Southam (April 19, 2017)75
1. Facts
Central Valley Gas Storage operates an underground natural gas storage project where it injects natural gas into an underground reservoir for storage and subsequent withdrawal.76 Central Valley calculated the boundaries of its storage project, determining its project encompassed 677 acres, of which Fred Southam and Southam & Son owned 80 acres.77 Central Valley successfully negotiated leases for underground storage with almost all of the landowners within its project, except Southam.78 To condemn the underground storage rights of the holdout owners, including Southam, Central Valley sought and obtained the power of eminent domain from the California Public Utilities Commission.79
The issue involved is the proper valuation method for underground natural gas storage leases. Southam sought to introduce evidence of value based on underground reservoir volume, which Central Valley moved to exclude.80 Central Valley submitted a declaration from its expert witness, who explained that a market for such leases had developed in California over the past twenty years and that the market values of such leases were based on the amount of surface acres within the project’s boundaries, rather than underground reservoir volume.81
In ruling on Central Valley’s motion in limine, the trial court offered Southam an opportunity to present evidence of comparable transactions, if any, based on reservoir volume.82Subsequently, the trial court determined that Southam had failed to present evidence of any such actual comparable transactions and it granted Central Valley’s motion.83
2. Holding
The court of appeal affirmed, holding that "when there is ‘a market for this property in the private market place as demonstrated by the evidence,’ the trial court errs in admitting evidence of a valuation methodology that ignores the developed market for a particular type of property."84 The court confirmed that "a developed market for natural gas storage leases has developed in California since this court’s decision in Pacific Gas & Electric Co. v. Zuckerman"85 and that market values of underground natural gas storage leases are based on surface acres within the project.86 Accordingly, the trial court correctly excluded evidence of value based on a different standard.
Southam did not seek review by the California Supreme Court.
3. Comment
Central Valley involved a narrow set of facts with its applicability limited to those other few cases involving valuation of underground natural gas storage leases. Despite its seemingly limited application, it could offer some assistance to a more common problem: the valuation of environmentally contaminated property when such property is condemned. The question is whether any part of remediation costs should offset the property’s value on a dollar for dollar basis. Though a recurring issue and one that can mean significant valuation differences, California case law has not yet answered this question. Central Valley‘s reasoning and holding suggest that the way to answer that question is by determining how the market values contaminated property. Does the market take remediation cost into consideration on a dollar for dollar basis when it values contaminated property? The answer remains to be seen.
III. A BRIEF REVIEW OF CONDEMNATION CASES FROM ACROSS THE COUNTRY
A. Inverse Condemnation
1. Murr v. Wisconsin87 (June 23, 2017)
(a) Facts
The Murrs owned two adjacent lots fronting the St. Croix River in Wisconsin, one developed and the other unimproved.88 When the family attempted to sell the unimproved lot by itself, state and county regulations prevented the sale.89 Those regulations "prevent the use of lots as separate building sites unless they have at least one acre of land suitable for development."90 The Murrs’ lots each had less than one acre suitable for development and the county denied a variance to permit the sale.91
[Page 10]
The Murrs sued the state and county for inverse condemnation alleging that the regulations worked a regulatory taking by depriving them of all, or practically all, of the use of their unimproved lot because the lot could not be sold or developed as a separate lot.92 The Murrs lost in the Wisconsin courts.93 These simple facts prompted the United States Supreme Court to revisit regulatory takings law.
(b) A New Test
The U.S. Supreme Court created a new multi-factor balancing test for determining the proper denominator in regulatory takings cases—i.e., determining the proper unit of property against which to assess the effect of the challenged governmental action.94 Because "no single consideration can supply the exclusive test for determining the denominator, . . . courts must consider a number of factors" and "[t]hese include the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land."95 The second factor, the physical characteristics of the landowner’s property, includes "the physical relationship of any distinguishable tracts, the parcel’s topography, and the surrounding human and ecological environment."96 The entire endeavor under the new multi-factor test "should determine whether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts;" and this inquiry is "objective."97
(c) Holding
Applying its new test, the Supreme Court held that the Murrs’ two adjacent lots should be considered one for the regulatory takings analysis. First, the treatment of the property under state and local law indicates the Murrs’ property should be treated as one when considering the effects of the restrictions.98 State and local regulations merged the Murrs’ two lots, and the adoption of those regulations "was for a specific and legitimate purpose, consistent with the widespread understanding that lot lines are not dominant or controlling in every case."99 "Second, the physical characteristics of the property support its treatment as a unified parcel" because the lots are contiguous along their longest edge and their rough terrain and narrow shape make it reasonable to expect their uses may be limited as separate lots.100 The Murrs should have anticipated public regulation might affect their lots given their location along a river with a history of regulation.101 Third, the prospective value that each lot brings to the other—i.e., "increased privacy and recreational space, plus the optimal location of any improvements"—supports considering them as one.102
(d) No Taking
When considering the Murrs’ two lots as one, "the state court was correct to conclude that [the Murrs] cannot establish a compensable taking in these circumstances."103 The Murrs "can use the property for residential purposes, including an enhanced, larger residential improvement," and so they have not been deprived of all economically beneficial use of their property in a Lucas v. South Carolina Coastal Council104-type taking.105 The Murrs also did not suffer a taking under Penn Central because the expert appraisal relied upon by the state court refutes any claim that the economic impact is severe, the Murrs cannot claim that they reasonably expected to sell or develop their lots separately given the regulations that predated their acquisition of both lots, and the regulations are reasonable land-use regulations.106
2. Leone v. County of Maui (October 16, 2017)107
(a) Facts
The County of Maui prevented the Leones from developing a single-family home on their beachfront lot at Palauea Beach, "one of the last undeveloped leeward beaches on Maui."108 The County prohibited any development on the Leones’ property, along with neighboring beachfront properties, absent a permit.109 When the Leones applied for a permit to build a single-family home, the County denied it.110
The Leones sued the County in inverse condemnation alleging that the County’s action left them with no economically beneficial use of their property.111 The jury determined that the County’s regulation did not deprive the Leones of economically beneficial use of their property, and the Leones challenged the jury’s finding through a motion for judgment as a matter of law.112
(b) Issue
The Hawaii Supreme Court decided a number of issues in this case, but the main issue was whether the County’s land use regulation constituted a regulatory taking of the Leones’ property by depriving the Leones of all economically beneficial use of their property.113
(c) No Taking
There was evidence to support the jury’s verdict in favor of the County that the County’s regulation did not deprive the Leones of all economically beneficial use of their property and, therefore, no taking had occurred.114 The Leones’ property retained a reasonable, economically beneficial use in the form of an investment use.115 According to the County’s real estate appraisal expert, the Leones’ property had great "investment use."116
[Page 11]
(d) Comment
The court’s holding seems problematic. According to the court, prohibiting any development on the Leones’ property did not deprive them of all economically beneficial use of their property because their property still served them as an investment. However, how can their property be considered an investment? If one cannot do anything with land because development is prohibited, who would want to buy it? If no one wants to buy the land, how will the land increase in value? If the land does not increase in value, is this really an investment?
The court’s holding creates a lower court split and invites U.S. Supreme Court review of the issue of whether property with residual value attributable to noneconomic uses precludes a Lucas117-type per se taking (i.e., a taking where an owner is deprived of all economically beneficial use of the owner’s property).118 Leone held that where regulation leaves property with residual value attributable to noneconomic uses, no Lucas-type per se taking has occurred.119 Leone conflicts with the holding of the Federal Circuit Court of Appeals in Lost Tree Village Corp. v. United States, where the court held that a Lucas120 -type per se taking had occurred where a regulation left property with only residual value attributable to noneconomic uses.121
B. Precondemnation Activities
1. Szabo v. Department of Transportation (April 12, 2017)122
(a) Facts
The Pennsylvania Department of Transportation ("DOT") wanted to take part of the Szabos’ property and its declaration of taking contained plans depicting the proposed condemnation.123 The plans labeled some of the property lines as "probable [sic] correct" and, in fact, the Szabos’ surveyor determined that the lines were not correct.124 The declaration of taking misidentified property owned by the Szabos as owned by other entities and, as a result, the plans understated the amount of property taken from the Szabos.125 The Szabos requested the trial court conduct an evidentiary hearing to determine the nature and extent of the property interests condemned, which the court denied.126
(b) Holding
The DOT’s declaration of taking, in misidentifying the property taken, deprived the Szabos of adequate notice of the extent and effect of the taking.127 State law requires that a condemning agency’s declaration of taking contain, among other things, "a reasonable identification of the property taken."128 The court confirmed "how crucial it is that plans attached to the declaration of taking be specific in describing property that is condemned and how important it is to properly identify that property at the earliest stages of the taking," so that the appropriate owner can be compensated for the taking.129
The Pennsylvania Supreme Court granted review on October 12, 2017.130 No decision has been made.
(c) Comment
Though Szabo deals with a Pennsylvania statute, California practitioners can take notice of this potential tool when representing the property owner and this potential pitfall when representing the condemning agency. California law similarly requires condemning agencies to take care in describing the property to be taken: the resolution of necessity must contain a "description of the general location and extent of the property to be taken, with sufficient detail for reasonable identification."131
2. City of Marietta v. Summerour (October 30, 2017)132
(a) Facts
The City of Marietta sought to acquire Ray Summerour’s land and grocery store to create a public park, and when negotiations for a voluntary acquisition failed, the City resorted to eminent domain.133 Summerour claimed the City’s petition to condemn should be dismissed because it did not provide him with a summary of the appraisal supporting its precondemnation offer until four years after making its first offer for a voluntary purchase.134 Georgia’s precondemnation procedures statute at Section 22-1-9, which is nearly identical to California’s,135 provides, "[b]efore the initiation of negotiations, the . . . condemning authority shall provide the owner of real property to be acquired with a written statement of, and summary of the basis for, the amount it established as just compensation."136
(b) Holding
Section 22-1-9 "is an essential prerequisite to the filing of a petition to condemn"137 and it is mandatory, despite its introductory provision that "all condemnation and potential condemnations shall, to the greatest extent practicable, be guided by the following policies and practices."138 Here, the City violated Section 22-1-9 because "it failed to disclose the appraisal summary to Summerour in a timely manner," given that it did not disclose the summary until four years after initiating negotiations.139 The court determined that "dismissing the condemnation petition is an appropriate remedy where a condemning authority has acted outside its authority by violating the law, irrespective of bad faith."140
[Page 12]
(c) Comment
California’s precondemnation procedures statute is nearly identical to Georgia’s Section 22 1-9. California Government Code section 7267.2 provides, "Prior to . . . initiating negotiations for the acquisition of real property, . . . [t]he public entity shall provide the owner of real property to be acquired with a written statement of, and summary of the basis for, the amount it established as just compensation" for its precondemnation offer.141 The California Government Code also contains introductory language similar to Section 22-1-9: "Public entities shall, to the greatest extent practicable, be guided by the provisions of Sections 7267.1 to 7267.7."142 At least one California court, in City of San Jose v. Great Oaks Water Co.,143 has decided the issue as Summerour did.144 These similarities are not coincidence. California and Georgia, among many other states, borrowed from the Federal Relocation Assistance and Real Property Acquisition Policies Act of 1970.145
California practitioners representing owners, however, have an added hurdle not existing in Georgia: unlike Georgia, California did incorporate disclaimer language from federal law into California Government Code section 7274, which provides, "[Government Code] Sections 7267 to 7267.7, inclusive, create no rights or liabilities and shall not affect the validity of any property acquisitions by purchase or condemnation."146 This disclaimer language did not prove problematic in Great Oaks, however.147
C. Valuation
1. County of Kauai v. Hanalei River Holdings Ltd. (May 16, 2017)148
(a) Facts
The case concerns the County of Kauai’s condemnation of three parcels of privately owned land—Parcels 33, 34, and 49—for a public park.149 Hanalei River Holdings ("HRH") owned parcels 33 and 34, and Michael Sheehan owned parcel 49.150 Sheehan also claimed to use Area 51, a portion of another parcel yet that was not being condemned, pursuant to an easement.151 Parcels 33 and 34 abutted one another, with Parcel 33 to the west of Parcel 34; Parcel 49 abutted Parcel 33’s western property line; and Area 51 abutted Parcel 34’s eastern property line.152 In other words, Parcels 33 and 34 lie between Parcel 49 and Area 51. Sheehan claimed that Parcel 49 and Area 51 formed one larger parcel entitling him to severance damages for Area 51 as a result of the County’s taking of Parcel 49.153
The County deposited estimated just compensation of $5,890,000 with the clerk of the court in exchange for being granted prejudgment possession of the property to be taken.154 A year later and before trial or judgment, the County filed a successful motion to withdraw a portion of its deposit based on an updated appraisal that reflected a lower estimate of compensation of $4,860,000.155
(b) Issues
The Hawaii Supreme Court addressed two issues: (1) whether Parcel 49 and Area 51 can be considered to be part of the same larger parcel, even though they do not physically abut, so that Sheehan may seek severance damages to Area 51 from the County’s taking of Parcel 49; and (2) whether a condemning agency may withdraw a portion of its deposited estimate of just compensation after taking prejudgment possession of the property.156
(c) Holding
The court explained that the test generally used for determining whether parcels form a larger parcel is "unity of title, physical unity and unity of use of the parcel taken and the parcel left."157 The court clarified that "the three unities should be evaluated and weighed against one another as factors, and should not be viewed as essential elements."158 The court then held that "the presence or lack of physical unity is not dispositive" of whether the two parcels are part of one larger parcel.159 However, here, the court found that even treating the three unities as factors, Parcel 49 and Area 51 could not be considered one larger parcel because none of the unities were present.160
On the deposit issue, the court held that "the court in an eminent domain proceeding has the discretion to permit a governmental entity to withdraw a portion of a deposit of estimated just compensation when the deposit has not been disbursed to the landowner, the government has acted in good faith in seeking to adjust the estimate to accurately reflect the value of the property on the date of the summons, and the adjustment will not impair the substantial rights of any party in interest."161 Here, the County was permitted to withdraw part of the deposit representing the difference between the amount deposited and the value of its updated appraisal.162
(d) Comment
The Hanalei River Holdings court noted that its holding on the larger parcel made Hawaii law consistent with the "majority of jurisdictions," including California, which treat the three unities as factors to be compared and weighed, and not as elements.163 California courts have shown the most lenience when unity of use and ownership are strong and only physical contiguity is lacking.164
The court’s holding on the deposit issue is also consistent with California law. California Code of Civil Procedure section 1255.030 authorizes the court, on motion by either the condemning agency or the property owner, to "determine or redetermine whether the amount deposited is the probable amount of compensation that will be awarded in the proceeding."165 California imposes a good faith requirement like Hawaii, though it is not referred to in such terms, by requiring any such motion to "be supported with detail sufficient to indicate clearly the basis for the motion," including such information as an updated appraisal of the property.166 Also similar to Hawaii, once the property owner has withdrawn a portion of the deposit, "the court may not determine or redetermine the probable amount of compensation to be less than the total amount already withdrawn."167 In other words, a condemning agency cannot withdraw a portion of the deposit after the deposit has been disbursed to the property owner.
[Page 13]
2. Kalergis v. Commissioner of Highways (October 26, 2017)168
(a) Facts
David and Mary Kalergis brought an action against the Commissioner of Highways, in his capacity as chief executive officer of the Virginia Department of Transportation ("DOT"), seeking to compel the DOT’s reconveyance of property it had condemned from Kalergis over twenty years prior.169 The DOT had condemned Kalergis’ property, including improvements, for a transportation project, but the DOT had not "commenced" the project after twenty years.170 Virginia’s "buyback" statute, Virginia Code section 33.2—1005(A), requires a condemning agency, such as the DOT, to reconvey property taken back to the property owner upon the owner’s demand if, after twenty years, the condemning agency has not commenced the project for which it took the property.171 Section 33.2—1005(A) provides that the property shall be reconveyed "upon repayment of the original purchase price."172
(b) Issue
The DOT argued that the "original purchase price"
of the property had been $1,150,000, which is what the DOT paid to Kalergis as just compensation for taking the property.173 Kalergis, on the other hand, demanded the DOT reconvey the land at the DOT’s original purchase price for just the land at $286,110, and not the improvements ($863,390) plus land value, because the DOT had demolished the improvements.174
(c) Holding
The Virginia Supreme Court held that section 33.2—1005 is not ambiguous and it means what it says, and "the original purchase price was $1,150,000."175 The court reasoned that if Virginia’s General Assembly had intended for reconveyance upon repayment of the appraised value instead of the "original purchase price," it would have used that language.176
(d) Comment
The Kalergis decision seems a little absurd. The DOT, not Kalergis, had chosen not to proceed with its proposed project after demolishing the property’s improvements. The court focused on the original purchase price, but what about how the agency had changed the property in the interim? What if, instead of demolishing improvements, the agency had somehow caused the property to become environmentally contaminated, requiring millions of dollars in remediation? From the court’s perspective, and in the court’s defense, the buyback statute does not require the prior owner to repurchase the property and only provides that if the owner chooses to do so, those are the terms. The buyback statute’s legislative history, which calls for guarding against eminent domain abuse by over-eager condemning agencies taking more property than they need as a way to bank property during recessionary periods, seems to support a different holding than the one reached by the court here.
Luckily, in California, the Legislature appears to have taken better care in drafting California’s buyback statute. California Code of Civil Procedure section 1245.245(f) requires a condemning agency to offer property back to the original owner if, after ten years, the agency has not used the property for the proposed use, adopted a new resolution of necessity for a different use, or adopted a re-authorizing resolution of necessity.177 The key difference in California is that the owner must pay "present market value, as determined by independent licensed appraisers."178
3. Jarreau v. South LaFourche Levee District (November 2, 2017)179
(a) Facts
Chad Jarreau, a dirt farmer, dug up dirt on his property in Southern Louisiana, churned it to create fine-grained sandy dirt useful for construction, and then sold it.180 The South LaFourche Levee District ("District"), the government entity responsible for local levee construction and maintenance, took a portion of Jarreau’s property for levee construction, preventing him from fulfilling existing contracts to supply processed dirt.181 In the District’s eminent domain action, Jarreau sought compensation for economic and business losses and lost profits, among other types of compensation.182
(b) Holding
The Louisiana Supreme Court held that Jarreau’s compensation was limited to that required by the Fifth Amendment to the United States Constitution, and the District did not owe Jarreau compensation for the value of his excavating business.183 The court explained that the District did not take Jarreau’s business, and nothing prevented Jarreau from moving his business to another site.184
[Page 14]
(c) Certiorari Denied
Jarreau sought review in the U.S. Supreme Court, asking the Court to decide whether the Fifth Amendment’s Takings Clause requires a condemning agency to pay just compensation when the taking of property destroys business value, or whether compensation is only required for lost business goodwill when the business itself is taken.185 The Court denied certiorari.
(d) Comment
California is one of only about a dozen states that allow a business to seek compensation for lost goodwill when property is condemned, whether the business is taken or the taking destroys some or all of the value of the business.186 Jarreau comes out of Louisiana, but it addressed compensation for business losses under the Fifth Amendment and the U.S. Supreme Court declined to weigh in on the issue. A business operating on property in California subject to a federal taking generally cannot recover lost business goodwill, unless the federal condemning agency takes the business itself.187
4. Montana-Dakota Utilities Co. v. Parkshill Farms, LLC (December 13, 2017)188
(a) Facts
Public utilities Montana-Dakota Utilities Co. and Otter Tail Power Co. (collectively, "Utilities") condemned a 150-foot-wide permanent easement to construct, operate, and maintain overhead electric transmission lines across and supporting equipment on property owned by Ordean Parks in South Dakota.189 The Utilities condemned the easement for their 163-mile-long transmission line project extending from North Dakota to South Dakota.190
At trial on just compensation, Parks requested, but was denied, the following jury instruction:
The Landowners’ damages in this case include damages for all rights taken under the easement, not just those arising from the project proposed by the Plaintiffs. In considering damages for the rights taken under the easement, you must consider all damages, present and prospective, that will accrue reasonably from the taking of the easement, and in doing so must consider the most injurious use of the property reasonably possible under the easement.191
Among other right-to-take issues, Parks appealed the court’s ruling denying his requested jury instruction.192
(b) Holding
The trial court had abused its discretion in denying the jury instruction that Parks had requested, and the jury instructions were "inadequate as a whole."193 The jury instructions failed because they did not instruct the jury to calculate compensation under the assumption that the Utilities will make full use of all of the rights acquired, regardless of whether the Utilities actually will ever use the full extent of the rights acquired.194
(c) Comment
The jury instruction in Parkshill Farms should be relatively familiar to California practitioners and can serve as a reminder of County of San Diego v. Bressi.195 Bressi provides:
The jury in a condemnation action must ". . . once and for all fix the damages, present and prospective, that will accrue reasonably from the construction of the improvement and in this connection [the jury] must consider the most injurious use of the property reasonably possible." . . . In determining the most injurious use of the property reasonably possible, the jury must consider the entire range of uses permitted under the resolution of necessity.196
[Page 15]
——–
Notes:
1. Lewis Carroll, Through the Looking Glass (1897).
2. Lewis Carroll, Alice’s Adventures in Wonderland (1918).
3. Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc., ___ P.3d___ [2017 COA 149] (Colo. Ct. App. 2017); Barton v. City of Norwalk, 161 A.3d 1264 (Conn. 2017); City of Sunny Isles Beach v. Cavalry Corp., 208 So. 3d 1247 (Fla. Dist. Ct. App. 2017); Abramyan v. State, 800 S.E.2d 366 (Ga. 2017); Ada County Highway Dist. v. Brooke View, Inc., 395 P.3d 357 (Idaho 2017); Dep’t of Transp. v. Adams Outdoor Adver. of Charlotte LP, 804 S.E.2d 486 (N.C. 2017); Palmer v. Atl. Coast Pipeline, LLC, 801 S.E.2d 414 (Va. 2017).
4. E.g., Murr v. Wisconsin, 582 U.S.___ [137 S. Ct. 1933] (2017); Surfrider Found. v. Martins Beach 1, LLC, 14 Cal. App. 5th 238 (2017); Mercury Cas. Co. v. City of Pasadena, 14 Cal. App. 5th 917 (2017); Dryden Oaks, LLC v. San Diego County Reg’l Airport Auth., 16 Cal. App. 5th 383 (2017); Abramyan, 800 S.E.2d 366; Leone v. County of Maui, 404 P.3d 1257 (Haw. 2017).
5. E.g., Cent. Valley Gas Storage LLC v. Southam, 11 Cal. App. 5th 686 (2017); Barton, 161 A.3d 1264; County of Kauai v. Hanalei River Holdings Ltd., 394 P.3d 741 (Haw. 2017); Jarreau v. S. LaFourche Levee Dist., 217 So. 3d 298 (La. 2017), cert. denied, 86 U.S.L.W. 3212 (U.S. Oct. 30, 2017) (No. 17-163); Adams Outdoor, 804 S.E.2d 486; Montana-Dakota Utils. Co. v. Parkshill Farms, LLC, 905 N.W2d 334 (S.D. 2017); Kalergis v. Comm’r of Highways, 805 S.E.2d 395 (Va. 2017).
6. E.g., City of Marietta v. Summerour, 807 S.E.2d 324 (Ga. 2017); Szabo v. Dep’t of Transp., 159 A.3d 604 (Pa. Commw. Ct. 2017); Palmer, 801 S.E.2d 414.
7. E.g., Carousel Farms, 2017 COA 149; Parkshill Farms, 905 N.W.2d 334.
8. Surfrider Found., 14 Cal. App. 5th 238; Mercury Cas., 14 Cal. App. 5th 917; Dryden Oaks, 16 Cal. App. 5th 383; Southam, 11 Cal. App. 5th 686.
9. Surfrider Found., 14 Cal. App. 5th 238, cert. denied; Mercury Cas., 14 Cal. App. 5th 917, cert. denied; Dryden Oaks, 16 Cal. App. 5th 383, cert. denied.
10. Southam, 11 Cal. App. 5th 686.
11. Surfrider Found., 14 Cal. App. 5th 238; Mercury Cas., 14 Cal. App. 5th 917; Dryden Oaks, 16 Cal. App. 5th 383.
12. E.g., Surfrider Found., 14 Cal. App. 5th 238 (ripeness); Dryden Oaks, 16 Cal. App. 5th 383 (incorrect party defendant).
13. E.g., Kalergis, 805 S.E.2d 395; Jarreau, 217 So. 3d 298.
14. E.g., Leone, 404 P.3d 1257; Summerour, 807 S.E.2d 324; Hanalei River Holdings, 394 P.3d 741; Parkshill Farms, 905 N.W.2d 334.
15. E.g., Szabo, 159 A.3d 604; Kalergis, 805 S.E.2d 395; Jarreau, 217 So. 3d 298; Carousel Farms, 2017 COA 149.
16. Surfrider Found., 14 Cal. App. 5th 238, petition for cert. filed, _ U.S.L.W _ (U.S. Feb. 26, 2018) (No. 17-1198).
17. Id. at 244.
18. Id. at 245.
19. Id. at 244.
20. Id. at 246.
21. Id.
22. Id. at 247.
23. Id.
24. Id. at 245.
25. Id. at 249, 252.
26. Id. at 250 (quoting Cal. Pub. Res. Code § 30106 ("’Development’ means . . . change in the intensity of use of water, or of access thereto.")).
27. Surfrider Found., 14 Cal. App. 5th at 253.
28. Id. at 254.
29. Id.
30. Id. at 256.
31. Id. at 257.
32. Id. at 257-258.
33. Id. at 258.
34. Id. at 265, 267-268, 271-272.
35. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).
36. Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987).
37. Dolan v. City of Tigard, 512 U.S. 374 (1994).
38. Surfrider Found., 14 Cal. App. 5th at 258-275.
39. Mercury Cas., 14 Cal. App. 5th 917.
40. John Bartlett, Bartlett’s Familiar Quotations 711 (Justin Kaplan ed., 17th ed. 2002).
41. Mercury Cas., 14 Cal. App. 5th at 920, 923.
42. Id. at 920, 922-923.
43. Id. at 924.
44. Id. at 920, 924.
45. Id. at 920-923.
46. Albers v. County of Los Angeles, 62 Cal. 2d 250, 263-264 (Cal. 1965).
47. Mercury Cas., 14 Cal. App. 5th at 925 (citing Pac. Bell v. City ofSan Diego, 81 Cal. App. 4th 596, 610 (2000)).
48. Mercury Cas., 14 Cal. App. 5th at 928.
49. Id. at 920.
50. Id.
51. See id. at 929-930.
52. Id. at 930-931.
53. Id.
54. Dryden Oaks, 16 Cal. App. 5th 383.
55. Id. at 388, 389.
56. Id. at 388, 390.
57. Id. at 388.
58. Id.
59. Id. at 388, 391.
60. Id. at 391.
61. Id.
62. Id.
63. Id. at 391-392
64. Id.
65. Id. at 389.
66. See id. at 394-397, 404-406.
67. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978).
68. Dryden Oaks, 16 Cal. App. 5th at 398.
69. Id. at 398-399.
70. Klopping v. City of Whittier, 8 Cal. 3d 39 (1972).
71. Id. at 51-52.
72. Dryden Oaks, 16 Cal. App. 5th at 406. A practitioner may consult the text of the court’s opinion to review the specific types of announcements for comparison to his or her own case.
73. See Jones v. People ex rel. Dep’t of Transp., 22 Cal. 3d 144, 148-149, 152-153 (1978); People ex rel. Dep’t of Transp. v. Diversified Properties Co. III, 14 Cal. App. 4th 429, 440-444 (1993); People ex rel. Dep’t of Pub. Works v. Graziadio, 231 Cal. App. 2d 525, 528-530 (1964).
74. Jones, 22 Cal. 3d at 148-149, 152-153; Diversified Properties, 14 Cal. App. 4th at 440-444; Graziadio, 231 Cal. App. 2d at 528-530.
75. Southam, 11 Cal. App. 5th 686.
76. Id. at 689.
77. Id.
78. Id. at 689-690.
79. Id. at 690. For reference, see Cal. Pub. Util. Code § 625.
80. Southam, 11 Cal. App. 5th at 690.
81. Id.
82. Id.
83. Id. at 690-691.
84. Id. at 692.
85. Pac. Gas & Elec. Co. v. Zuckerman, 189 Cal. App. 3d 1113 (1987) (affirming use of any method of valuation that is "just and equitable"); see also Cal. Civ. Proc. Code § 1263.320(b); Cal. Evid. Code § 823.
86. Southam, 11 Cal. App. 5th at 692 (citing Zuckerman, 189 Cal. App. 3d at 1128, 1135 ("It may fairly be said that there are no true ‘comparables’ in dealing with underground storage reservoirs.")).
87. Murr v. Wisconsin, 137 S. Ct. 1933.
88. Id. at 1940.
89. Id. at 1941.
90. Id. at 1940.
91. Id. at 1940-1941.
92. Id. at 1941.
93. Id. at 1941-1942.
94. Id. at 1943-1944,
95. Id. at 1945.
96. Id.
97. Id.
98. Id. at 1948.
99. Id.
100. Id.
101. Id.
102. Id.
103. Id. at 1949.
104. Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992).
105. Murr, 137 S. Ct. at 1949.
106. Id.
107. Leone, 404 P.3d 1257.
108. Id. at 1260.
109. Id.
110. Id. at 1261.
111. Id.
112. Id. at 1269.
113. Id. at 1259, 1270, 1276.
114. Id. at 1259.
115. Id. at 1277.
116. Id.
117. Lucas, 505 U.S. 1003.
118. Lost Tree Village Corp. v. United States, 787 F.3d 1111, 1115-1116 (Fed. Cir. 2015).
119. Leone, 404 P.3d at 1259.
120. Lucas, 505 U.S. 1003.
121. Lost Tree, 787 F.3d at 1116-1118.
122. Szabo, 159 A.3d 604.
123. Id. at 605.
124. Id.
125. Id. at 606.
126. Id.
127. Id. at 606-607.
128. Id. at 606 (citing 26 Pa. Cons. Stat. § 305(c)(8) (2006)).
129. Szabo, 159 A.3d at 606-608.
130. Szabo v. Dep’t of Transp., 172 A.3d 1109 (Pa. 2017).
131. Cal. Civ. Proc. Code § 1245.230(b) (emphasis added).
132. Summerour, 807 S.E.2d 324.
133. Id. at 325.
134. Id. at 327.
135. Cal. Gov’t Code § 7267.2(a) & (b) ("Prior to… initiating negotiations for the acquisition of real property, . . . [t]he public entity shall provide the owner of real property to be acquired with a written statement of, and summary of the basis for, the amount it established as just compensation" for its precondemnation offer.).
136. Summerour, 807 S.E.2d at 329 (quoting Ga. Code Ann. § 22-1-9 (2013)).
137. Summerour, 807 S.E.2d at 326.
138. Id. at 330-331 (quoting Ga. Code Ann. § 22-1-9 (2013)).
139. Summerour, 807 S.E.2d at 332-333.
140. Id. at 334-335.
141. Cal. Gov’t Code § 7267.2(a) & (b).
142. Cal. Gov’t Code § 7267.
143. City of San Jose v. Great Oaks Water Co., 192 Cal. App. 3d 1005 (1987).
144. Id. at 1011-1013 (City failed to provide a written summary of the basis for determination of the value of the property to be taken prior to adoption of the resolution of necessity and, therefore, had not complied with California Government Code section 7267.2, which compliance is mandatory).
145. Federal Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. §§ 4601-4655; United Auto Workers v. Dep’t of Transp., 20 Cal. App. 4th 1462, 1467, 1469-1471 (1993); Summerour, 807 S.E.2d at 331.
146. Summerour, 807 S.E.2d at 332 (confirming Georgia’s General Assembly "did not borrow the disclaimer from 42 U.S.C. § 4602."); Cal. Gov’t Code § 7274.
147. Great Oaks, 192 Cal. App. 3d at 1012-1013.
148. Hanalei River Holdings, 394 P.3d 741.
149. Id. at 745.
150. Id. at 744.
151. Id. at 745.
152. Id. at 744-745.
153. Id. at 747.
154. Id. at 745.
155. Id. at 746.
156. Id. at 750.
157. Id.
158. Id. at 752 (emphasis in original).
159. Id. at 744.
160. Id. at 752-753.
161. Id. at 744, 760.
162. Id.
163. Id. at 752; e.g., City of Los Angeles v. Wolfe, 6 Cal. 3d 326 (1971) ("Unity of use if not the controlling factor is relevant, however, and may be considered where the properties are not physically contiguous.").
164. E.g., Wolfe, 6 Cal. 3d at 333-336 ("The law, generally speaking, is that where there is actual and existing unity of use and purpose, the separation of the tracts in question . . . is without legal consequence so long as there is an actually lawfully used means of access between the tracts."); People ex rel. Dep’t of Pub. Works v. Thompson, 43 Cal. 2d 13, 25 (1954) (physical contiguity exists even when property is crossed by a highway easement); see 1 Norman E. Matteoni & Henry Veit, Condemnation Practice in California § 5.7 (3d ed. 2017) ("The physical contiguity test has not always been strictly applied. . . . [but] [p]hysical proximity remains an important factor to consider in determining whether contiguity exists.").
165. Cal. Civ. Proc. Code § 1255.030(a).
166. Cal. Civ. Proc. Code § 1255.030(a)(1)-(3).
167. Cal. Civ. Proc. Code § 1255.030(d) (emphasis added).
168. Kalergis, 805 S.E.2d 395.
169. Id. at 396.
170. Id.
171. Id. at 397.
172. Id. (quoting Va. Code Ann. § 33.2-1005(A) (2014)).
173. Kalergis, 805 S.E.2d at 396.
174. Id. at 396, 397.
175. Id. at 398.
176. Id.
177. Cal. Civ. Proc. Code § 1245.245(f).
178. Cal. Civ. Proc. Code § 1245.245(f)(1).
179. Jarreau, 217 So. 3d 298.
180. Id. at 302; Petition for Writ of Certiorari, Jarreau, 217 So. 3d 298 (No. 17-163), p. 2.
181. Jarreau, 217 So. 3d at 312.
182. Id. at 302.
183. Id. at 311, 312-313.
184. Id. at 313.
185. Petition for Writ of Certiorari, Jarreau, 217 So. 3d 298 (No. 17-163).
186. 8A Nichols on Eminent Domain § G29.03 (3d ed. 2018); see Cal. Civ. Proc. Code § 1263.510 (authorizing a claim for lost business goodwill in eminent domain); Chhour v. Cmty. Redev. Agency, 46 Cal. App. 4th 273, 282 (1996) (authorizing a claim for lost business goodwill in inverse condemnation).
187. 2 Norman E. Matteoni & Henry Veit, Condemnation Practice in California § 11.21 (3d ed. 2017); United States v. Gen. Motors Corp., 323 U.S. 373, 383 (1945) (federal law does not recognize an owner’s right to claim compensation for lost business goodwill when property is taken). Cf. Kimball Laundry Co. v. United States, 338 U.S. 1, 6 (1949) (when the federal government condemns a business to operate the business, it must pay for the taken business).
188. Parkshill Farms, 905 N.W.2d 334.
189. Id. at 336-337.
190. Id. at 336.
191. Id. at 342.
192. Id.
193. Id. at 343.
194. Id.
195. County of San Diego v. Bressi, 184 Cal. App. 3d 112 (1986).
196. Id. at 123 (emphasis in original).