It is not often that the California Supreme Court steps in to reform legislation that would otherwise be unconstitutional, but that’s what it did in Property Reserve, Inc. v. Superior Court (S.Ct. No. S217738), issued July 21, 2016.  The legislation was Code of Civil Procedure sections 1245.010-1245.060, which authorizes precondemnation entry and testing activities by the government on property being considered for condemnation.  The statute contemplates a petition being filed by the government describing the entry and testing desired, which the court can authorize after hearing.  The court may also require a deposit into court to compensate the property owner for damage to his or her property resulting from the government’s activities.

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In its second major eminent domain opinion in as many months, the California Supreme Court in City of Perris v. Richard C. Stamper (S.Ct. No. S213468), issued on August 15, 2016, deals with two issues:  First, is it the role of a judge or a jury to make the preliminary determination of whether a public dedication requirement affecting valuation in an eminent domain case is constitutional?  Second, to what extent does such a dedication requirement constitute a “project effect” which must be ignored in determining the value of condemned property.  The 50 page opinion, complete with a concurrence and dissent by Justice Cuellar, is thorough and comprehensive.

A little background to set the context:  The City of Perris sought to condemn a 1.6 acre strip through the middle of defendant’s property in order to build a road.  The property was undeveloped agricultural land, but the property owner argued that he should be compensated based on the highest and best use of the property, namely light industrial land.  The City responded that any development of the property to light industrial use would trigger a requirement by the City that the same strip of land be dedicated for road construction.  Thus, the rule articulated in City of Porterville v. Young (1987) 195 Cal.App.3d 1260, applied: when a city takes a portion of undeveloped property that it would have lawfully required the owner to dedicate to the city as a condition of developing the remainder of the property, the owner is entitled to compensation based on the undeveloped state of the property (here, agricultural), rather than its highest and best use.


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February 29, 2016 was a notable leap year day for the United States Supreme Court. To the surprise of most in the courtroom that day, Justice Clarence Thomas asked his first question from the bench in more than 10 years. The Court also issued its first round of orders since the February 13 death of Justice Antonin Scalia, including a denial of certiorari in California Building Industry Association v. City of San Jose, 61 Cal. 4th 435 (2015).

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