Right of Way Certification is a key project milestone; not only does it mean a project is ready for advertising but obtaining certification by a certain date is often a prerequisite for funding.  Tying certification to dollars means it’s crucial that agencies acquire property and/or obtain orders for possession in a timely manner.  As we’ve discussed here before, this can mean filing an eminent domain action while still negotiating with property owners, something many agency boards are reluctant to do.

The latest example of the perils of prejudgment possession comes out of Butte County.  Ryan Olson of the Chico-Enterprise Record reports in his article “Butte County Supervisors to Consider Eminent Domain for Oroville Sidewalk Project” that three properties remain to be acquired for the Lincoln Boulevard Pedestrian Safety Project.  According to Olson, the County needs to acquire the right of way or obtain orders of possession for all of the required parcels by August 30, 2015.  The County Board of Supervisors is scheduled to consider Resolutions of Necessity at its meeting this week.  Once the resolutions pass, the County may file eminent domain actions.  But this is cutting it fairly close.  Under Code of Civil Procedure section 1255.410, an agency must give an owner of occupied property at least 60-days notice before bringing a motion for prejudgment possession.  And the order is usually not effective for another 30 days after the hearing.  So, assuming a best case scenario – the County is able to serve the motion for possession immediately after filing the complaint and is able to get a court hearing 60 days later – the effective date of possession is probably early-to-mid- August.  That doesn’t give the County a lot of time to serve its papers or deal with any objections or potential right-to-take challenges before the August 30 deadline.

Filing an eminent domain action can seem like a drastic step to both agency boards and property owners.  But the reality is that with funding and tight project schedules, it is often necessary to take action sooner than later.  This does not have to derail negotiations.  Letting owners know how the process works, and offering them alternatives (such as a possession and use agreement) can often keep negotiations on track for everyone.