Provisions of California’s Eminent Domain law known as the “entry statutes” have for decades provided a mechanism for a condemnor, prior to initiating condemnation proceedings, to obtain a court order allowing it to enter property to conduct tests and surveys relating to the acquisition or use of the property for a particular public use. Under the entry statutes, the court may grant entry for specific activities and with the requirement that the condemnor deposit with the court the amount of probable compensation to be paid to the property owner for any damage to or interference with the property as a result of the permitted activities.
The Third District California Court of Appeal recently ruled in Property Reserve, Inc. v. Superior Court, 224 Cal.App.4th 828 (2014), that the entry statutes are unconstitutional when the activities for which the entry is sought constitute an intentional taking of a property interest or damaging of property without the full protections afforded in a condemnation action.
State’s Petition to Enter for Geological and Environmental Studies
The state, through the Department of Water Resources, sought orders under the entry statutes allowing it to enter onto 240 parcels of land to conduct geological and environmental studies of the properties’ suitability for construction of a tunnel to transport water from Northern to Southern California. The geological studies on certain properties involved boring into the ground to a depth of about 200 feet, creating holes from 1.5 inches to 6 inches in diameter, and removing soil core samples for study. The holes created would be filled with a permanent cement/bentonite grout. The environmental studies involved a number of activities, including species surveys (requiring the setting and monitoring of animal traps), collecting samples of vegetation and soil scrapings, and aerial mapping using targets installed on the properties.
The trial court denied the state’s petition to conduct the geological surveys but granted the petition as to the environmental studies, subject to certain limitations on the number of people permitted to enter each property and the duration of the entry. For some properties, the court’s order permitted up 66 days of entry over a one-year period and up to eight people per entry, as well as authorization to leave traps and mapping markers on some of the properties for several weeks. Both the landowners and the state appealed.
Court Holds Geological and Environmental Studies Are Takings, Requiring Condemnation Action
The Court of Appeal held that both the geological and the environmental studies would effect a taking or intentional damage of property and, therefore, the state could not obtain permission to enter the properties to conduct such studies without filing a condemnation action. The geological studies would constitute a per se taking because the cement compound filling the bore holes would permanently occupy part of the property. The size of such a physical occupation has no bearing on whether it is a taking.
The environmental studies, on the other hand, would not constitute a per se taking because they would not result in a permanent occupation of the property. Therefore, the court looked to several factors established by prior case law to determine whether the studies would effect a taking, including (1) the degree to which the physical invasions of the property are intended, (2) the character of the invasions, (3) the duration of the invasions and (4) the invasions’ economic impact on the landowners. Applying those factors, the court concluded that a right to enter by several people and vehicles for 66 days over a one-year period was a substantial infringement on the property owner’s rights and would essentially be a two-month temporary blanket easement. Such an easement is a property right that the state may acquire only through negotiation or a condemnation action.
Having determined that the state’s proposed testing would constitute a taking of property, the court concluded the entry statutes do not afford the landowners the full protections required by the Constitution. Most significantly, the entry statutes do not provide for just compensation to be determined by a jury and, in fact, do not even provide the landowner with a hearing on the petition. In addition, the entry statutes essentially place on the landowner the burden of proof of damage to or interference with the property, whereas, in a condemnation action, just compensation is paid regardless of injury or damage and neither party bears the burden of proof as to the amount of the compensation.
What Property Reserve, Inc. Means for Owners and Condemnors
The Court of Appeal did not find that the entry statutes are unconstitutional in all cases. Constitutional requirements prohibit a grant of access under the entry statutes where the entry would effect an intentional taking or injury to private property. Where the entry will result in a permanent occupation of any part of the property – no matter how small – then it is a per se taking that can be accomplished only by means of a condemnation action. Where there is no per se taking, the propriety of proceeding under the entry statutes will depend upon a consideration of the nature, duration and economic impact of the entry.
As the court noted, this leaves landowners and condemnors without a bright-line test for determining when it is appropriate to proceed under the entry statutes. Studies that will be of short duration, that will have minimal impact on the property and will leave no permanent mark or material are unlikely to be considered takings and therefore can likely proceed under the entry statutes. For studies that will involve a significant impact on the property -- or on the property owner’s right of exclusive possession or economic interests – a condemnation action may be required in order to acquire a temporary easement or other appropriate property interest. Property Reserve provides a basis for property owners to launch a constitutional challenge to a petition to conduct studies under the entry statutes and is therefore likely to encourage condemnors to bring a condemnation action to obtain entry in cases where the proposed studies will result in any arguably significant impact.