Follow Up on IRWA/Appraisal Institute "2012 Eminent Domain Year in Review" Presentation

by Nossaman LLP
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For those of you who attended the joint meeting today between Chapter 1 of the International Right of Way Association and the Appraisal Institute, we promised to post a cheat sheet that reminds you about the cases associated with our cleverly crafted slides.  (For those of you who did not attend, you missed a great event, and will be punished by likely having no idea what we're talking about below.) 

As promised, here is the recap of our case slides, each of which started with:

Where We Learned . . .

  1. "That the Court can’t exclude appraisers simply because the judge thinks they are full of crap":  This refers to County of Glenn v. Foley (2012) 212 Cal.App.4th 393, in which the Court reversed a trial court decision granting the agency's motion in limine to exclude the owner's appraiser, concluding the appraiser should have been allowed to testify. 
  2. "That the Court can exclude an appraisal simply because the judge thinks it is full of crap":  This refers to City of Corona v. Liston Brick Company of Corona (2012) 208 Cal.App.4th 536, in which the Court excluded three types of appraisal evidence under Evidence Code section 822.
  3. "That if you can dream up damages, then they must be real":  This refers to City of Livermore v. Baca (2012) 205 Cal.App.4th 1460, in which the Court reversed the trial court's decision to exclude as speculative evidence concerning certain damages, including temporary severance damages.
  4. That Nothing from Nothing Leaves Nothing”:  This refers to People ex rel. Department of Transportation v. Dry Canyon Enterprises (2012) 211 Cal.App.4th 486, in which the Court made explicit a requirement that a business owner prove the business possessed goodwill in the before condition in order to recover for lost business goodwill. 
  5. "That in some cases access to the courts is just as bad as the access left for remainder parcels":  This refers to Council of San Benito County Governments v. Hollister Inn (2012) 209 Cal.App.4th 473, in which the Court denied a right to take challenge premised on the agency's refusal to consider condemning substitute access for a hotel property.
  6. "That agencies can be unreasonable as long as they don’t allow the court to empanel a jury":  This refers to California Department of Transportation v. Menigoz (2012) 203 Cal.App.4th 1505, in which the Court held that an owner cannot recover litigation expenses, regardless of the reasonableness of the agency's conduct, so long as the case settles before the jury is empanelled. 
  7. "That the government’s taking away of a multi-million dollar revenue stream doesn’t mean that a taking took place":  This refers to West Washington Properties v. California Department of Transportation (2012) 210 Cal.App.4th 1136, in which the Court rejected an inverse condemnation claim arising from Caltrans' requiring the removal of an 8,000 square foot "wallscape" advertising space on a property owner's building.
  8. "That you’re not protected from an inverse condemnation claim just because you aren’t the government":  This refers to Pacific Bell Telephone Company v. Southern California Edison Company (2012) 208 Cal.App.4th 1400, in which the Court held that a privately-owned public utility company can be liable for inverse condemnation under the same strict liability standard that applies to government agencies.
  9. "That just because you sold under threat of eminent domain doesn’t mean you get to keep your tax basis":  This refers to Duea v. County of San Diego (2012) 204 Cal.App.4th 691, in which the Court upheld the County Assessor's decision to reject an owner's effort to transfer his Proposition 13 property tax basis after selling his property under threat of eminent domain because the actual sale was to a private developer, not the government agency that was threatening to condemn if the owner did not voluntarily sell to that developer.
  10. "That temporarily taking someone’s property might qualify as a taking":  This refers to Arkansas Game and Fish Commission v. United States (2012) 133 S.Ct. 511, in which the Supreme Court rejected an argument that temporarily flooding someone's property cannot qualify as a taking, as a matter of law.  Instead, the Court held that such temporary flooding can qualify as a taking, remanding the case for a determination of whether a temporary taking had in fact occurred in that case.
  11. "Whether the 'nexus' and 'proportionality' tests apply beyond physical takings":  This refers to Koontz v. St. John's River Water Management District, recently argued before the U.S. Supreme Court, in which the Court is looking at a potential expansion of the Nollan and Dolan lines of cases. 
  12. "What 'raisin handlers' do and why we should care":  This refers to Horne v. U.S. Department of Agriculture (2012) 133 S.Ct. 638, also pending before the U.S. Supreme Court.  Oral argument is set to be heard on this case tomorrow, March 20.

We had a great time at the event, and think combining the IRWA and Appraisal Institute for a joint meeting is a great tradition practiced in Los Angeles.  I've suggested to Chapter 67 in Orange County that we explore a similar joint meeting, and I hope it happens.

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