• Property Reserve, Inc. v. Superior Court, 2014 Cap.App.LEXUS 237

    Posted March 28, 2014 By in Recent News With | No Comments


    Property Reserve, Inc. v. Superior Court, 2014 Cap.App.LEXUS 237


    A California Court of Appeal recently ruled in Property Reserve Inc. v. Superior Court, 2014 Cal. App. LEXUS 237 that the California eminent domain law allowing for pre-condemnation entry for testing, as embodied in California Code of Civil Procedure (“CCP”) § 1245.010, et seq. is unconstitutional because it fails to provide landowners with certain procedural protections embodied in the California Constitution. CCP § 1245.010 states that “Subject to requirements of this article, any person authorized to acquire property for a particular use by eminent domain may enter upon property to make photographs, studies, surveys, examinations, tests, soundings, boring, samplings, or appraisals or to engage in similar activities reasonably related to acquisition or use of the property for that use.” The entry and testing scheme allowed by CCP § 1245.010 was frequently used by public entities to determine whether targeted properties were suitable to meet the public project needs.

    The Court’s ruling in Property Reserve makes clear that most environmental testing will be considered a taking that will require, at a minimum, the filing of an eminent domain complaint prior to the public entity being allowed to conduct the testing. This ruling will significantly hamper a public entity’s ability to evaluate potential acquisition sites, and may hinder the ability of public entities to approve Resolutions of Necessity to take a property by eminent domain.

    Should you like more information on how your entity can adjust its procedures in light of the Property Reserve decision, please contact Brian J. Bergman at (310) 470-6110 or bbergman@bdgfirm.com.

  • County of Glenn v. Foley

    Posted January 9, 2013 By in Recent News With | No Comments

    County of Glenn v. Foley

    Court of Appeal Reaffirms Right of Parties in Eminent Domain Actions to Introduce Expert Testimony on How “Comparable” Sales Data Should Be Adjusted In Light of Differences in Property Improvements.

    In the recent County of Glenn v. Foley decision, 2012 Cal.App. LEXIS 1302, the California Court of Appeal, Third Appellate District, held that while expert opinion on the value of comparable properties was inadmissible in eminent domain motions, expert testimony was admissible to opine on how differences in property improvements on comparable properties could affect the valuation of the comparable properties.

    In Foley, the County desired to take certain land as part of its effort to expand its landfill. The property owner’s expert opined that even though the property was currently used as grazing land, the highest and best use of the property was as orchard land. The property owner’s expert then opined that when sales of comparable orchard land were reviewed and adjustments were applied to these comparable sales to take into account differences in property improvements, such as existing crops, soil conditions, etc., the subject property was worth $1.7 million. The County did not agree with the property owner’s expert’s analysis and argued that the highest and best use of the property was as its existing use, grazing land, and that the property was only worth $637,000.

    The County brought a motion in limine to exclude the valuation opinion of the property owner’s expert on the grounds that the property owner’s valuation method, which made adjustments to the purchase price of comparable properties, included inadmissible opinions regarding the value of comparable properties, when only objective evidence of comparable sales, such as actual sales prices was admissible under California Evidence Code section 822 in an eminent domain action. The trial Court granted the County’s motion and an appeal followed. Reversing the trial court decision, the Court of Appeal held that while expert testimony on the value of comparable properties was not admissible, expert testimony regarding an appraiser’s adjustments to comparable sales prices (to reduce or increase valuations based on improvements on the comparable property) was acceptable if the expert testimony was properly supported.

    The Foley decision will likely be used by defendants in eminent domain actions to defeat public entity attempts to exclude the testimony of property owner valuation experts, but the case may also prove useful for public entities defending the admittance of their experts’ testimony under some circumstances.

    Should you have any questions about this decision or how Bergman Dacey Goldsmith can help your entity in eminent domain proceedings, or any other legal matter, please contact Brian J. Bergman at (310) 470-6110 or at bbergman@bdgfirm.com.

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