<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by upacreek:
I own 14 ares of land. A creek run though the middle of the property dividing it conpletely in have . The town that I live in wants to make a state walking path along the creek bed which would be in my back yard along with all the other residents , including animal farmers and crop farmers who would have to adjust all the pastures gateing and fencing them . This is not vacant land this is in our back yards! What and should we do to stop this before they get the states approval?<HR></BLOCKQUOTE>
My response:
What is eminent domain and when can it be used?
"Eminent domain" (also called "condemnation") is the power of government agencies to acquire property for "public use" so long as the government pays "just compensation." Recognized public uses for which the power of eminent domain may be used include, among other things, schools, parks, roads, highways, subways, fire and police stations, public buildings, and the elimination of blight through redevelopment. A key attribute of eminent domain is that the government can exercise its power of eminent domain even if the owner does not wish to sell his or her property.
Can I challenge the government's right to acquire my property?
Even though the vast majority of government agencies possess the power of eminent domain, on occasion, a successful challenge to the government's right to take a particular property for a particular project can be made. You should be cautioned, however, that such challenges are the exception, not the rule, and usually result only in a delay, rather than outright prevention of the government's right to take.
Typical challenges to the right to take are for failure of the government to follow the proper procedural steps towards eminent domain (see "Eminent Domain Procedures" link on left side of this page). If the government fails to follow the proper procedures, a right to take challenge is sometimes possible. Again, however, it must be remembered that the circumstances allowing a successful challenge to the right to take are rare. Each case must be evaluated on its own facts and experienced eminent domain counsel should be consulted. Seeking compensation for the taking, rather than challenging the government's right to take, will be the property owner's usual remedy.
What is a "public use"?
One possible challenge to the government's right to take can be raised where the project for which the property is being taken is not for a "public use." The Fifth Amendment of the United States Constitution and Article I, Section 19 of the California Constitution allow private property to be taken by eminent domain only for a "public use."
The term "public use" has been interpreted very broadly by the Courts. The project need not be actually open to the public to constitute a public use. Instead, generally only a public benefit is required. Elimination of blight through redevelopment projects, for example, is a public benefit which courts have held satisfies the "public use" requirement of the Federal and State Constitutions. This is true even though the property will typically be transferred to a private redeveloper and may never be open to the general public. It usually doesn't matter if the redeveloper may be doing nothing more than building a new mall or a complex of movie theaters.
What if I am successful in challenging the government's right to take my property?
In those instances where the property owner successfully challenges the government's right to acquire his or her property by eminent domain, California law provides that the eminent domain proceeding may be dismissed. The property owner may be entitled to recover his or her litigation expenses including attorneys' and appraisers' fees incurred in the action.
Even where a successful challenge to the right to take is made, the court has the authority under some circumstances to allow the government agency to correct any procedural mistakes and proceed with the acquisition. Moreover, even if the action is dismissed outright, the government agency may start the process all over again; prevailing on the right to take challenge does not preclude the government from acquiring the property for all time.
If I am unsuccessful in challenging the right to take, will I have any liability for the government's costs?
No. Where a right to take challenge is raised but is unsuccessful, the government may proceed with the acquisition, and the property owner will not be liable for the government's costs.
What steps must the government take in order to acquire my property by eminent domain?
Generally, when the government wants to take your property by eminent domain, you can expect to encounter some or all of the following procedures in approximately the following order:
Initial contact by government agency to express interest in the property and/or scheduling date for appraisal of the property;
Appraisal of the property, including improvements, by agency retained appraiser;
Offer to purchase the property is made to the owner, together with summary of appraisal upon which offer to purchase is made;
Notice of public hearing to adopt "resolution of necessity" to acquire property by eminent domain;
Public hearing is held to adopt "resolution of necessity" to acquire the property by eminent domain;
Eminent domain case is filed in court and served on property owner;
Deposit by agency of the probable amount of just compensation is paid into court and request by agency for early possession of the property;
Discovery (i.e., depositions and document production) takes place in eminent domain action, and both the property owner and government hire appraisers to determine "fair market value" of the subject property;
The property owner and government exchange their respective appraisers' reports;
Final settlement offers and demands are exchanged;
If settlement cannot be reached, trial of the eminent domain action takes place before a jury whose job it is to determine "fair market value" of the subject property;
Jury returns verdict and judgment is entered;
Government pays judgment within 30 days following entry of judgment and title to subject property is transferred to the government by the court.
In addition, at some point during the process (usually early on), the property owner and/or tenants should be contacted by a relocation agent retained by the government. The purpose of the relocation agent is to provide assistance to residents and business owners to relocate their residence or business.
Must the government make me an offer for my property before filing a court action?
California Government Code section 7267.2 requires government agencies to obtain an independent fee appraisal and make an offer to the owner of record of real property to be acquired before the agency may commence court proceedings. The offer generally must be in an amount no less than the independent appraisal approved by the agency.
Am I entitled to a copy of the appraisal report on which the government bases its offer to purchase my property?
When the government makes its offer to purchase property as required by Government Code section 7267.2, the agency must provide the owner of record with a "summary" of the basis of the offer. Usually, this means that the agency must provide the owner of record only with a brief summary of the appraisal upon which the offer is based.
If the property to be acquired consists of owner occupied residential property of four units or less, the agency must also provide the owner of record with a copy of the initial appraisal if it is requested by the owner. For other types of property, the agency does not have any obligation to provide the owner with a copy of the initial appraisal and generally will not do so. Until litigation is commenced, the owner is entitled only to the summary of the basis for the offer, as discussed above.
Once
