September 2017 Update
This update addresses the most significant statutory and regulatory changes since the previous update was published. Among the most significant recent developments are the following:
In the long-awaited decision in City of Perris v Stamper (2016) 1 C5th 576, the California Supreme Court applied the project effect rule to determine the applicability of a dedication requirement to the valuation of property condemned. The supreme court also held in Stamper that the constitutionality of a dedication requirement under Nollan and Dolan is for the court to decide. See discussion in §§4.5, 4.12, 4.83, 5.16.
A loss of goodwill claim for a nonprofit organization was recognized in People ex rel Dep't of Transp. v Presidio Performing Arts Found. (2016) 5 CA5th 190. See §§4.66, 4.77.
For a case on the valuation of underground natural gas storage, and distinguishing the decision in PG&E v Zuckerman (1987) 189 CA3d 1113 on that topic, see Central Valley Gas Storage LLC v Southam (2017) 11 CA5th 686, discussed in §4.87.
A new section has been added with detailed discussion of how to define the "public project" for purposes of determining severance damages. See §5.3A.
In another long-awaited decision, the California Supreme Court approved the use of the precondemnation entry statute for geologic borings, as well as extensive environmental studies, on the basis of the legislature's corrective amendments to the statute since 1923. Property Reserve, Inc. v Superior Court (California Dep't of Water Resources) (2016) 1 C5th 151. See detailed discussion in §8.27A.
In City of San Jose v Superior Court (2017) 2 C5th 608, the California Supreme Court addressed the extent of the reach of a public records request to include disclosure of e-mails in the personal accounts of public employees and officials conducting public business. See §9.29B.
For new discussion and practice tips on how to conduct cross-examination to draw out details of the project from the project construction plans that affect the property, especially in the case of design build projects, see §9.60.
For new discussion of the use of Google Earth® aerial (overhead and oblique) images, drone videos, PowerPoint® presentations, and similar tools in condemnation litigation, see §§9.94–9.95.
In Alaska Dep't of Natural Resources v U.S. (9th Cir 2016) 816 F3d 580, 587, the Ninth Circuit ruled that when a state's claim under the Quiet Title Act (28 USC §2409a) is barred, it may not litigate title to contested rights of way on Indian lands "through the back door" by asserting a condemnation claim under 25 USC §357. See §11.12.
In Boxer v City of Beverly Hills (2016) 246 CA4th 1212, the court held that residential property owners do not have a property right to an unobstructed view when large trees growing on a city park do not physically invade their property. Also, the fire risk posed by the trees was speculative. See §§13.3A, 13.4, 14.13A.
For an application of the U.S. Supreme Court decision in Arkansas Game & Fish Comm'n v U.S. (2012) 568 US ___, 133 S Ct 511, to temporary flood damage arising from storm surge during Hurricane Katrinia caused by the Army Corps of Engineers' construction, expansions, operation, and failure to maintain the Mississippi River Gulf Outlet, see St. Bernard Parish Gov't v U.S. (2015) 121 Fed Cl 687 (a detailed opinion on foreseeability, causation, and intervening events). See §14.6.
In its much-anticipated decision in Murr v Wisconsin (2017) ___ US ___, 137 S Ct 1933, the U.S. Supreme Court ruled that a local regulation that effectively merged an undeveloped lot with an adjacent developed lot in the same ownership was not a taking, after analyzing three factors: (1) how title is treated under state and local law, (2) the physical characteristics of the undeveloped parcel, and (3) the economic impact on the combined lots. See §§15.5, 15.10, 15.20.
The court in City of Corona v AMG Advertising, Inc. (2016) 244 CA4th 291 upheld against a constitutional challenge a city ordinance prohibiting all new offsite billboards after 2004 but allowing ones that were erected before the ordinance's enactment to be relocated if a permit was obtained. See §15.16.
Landlord-tenant lawyers may recall that in Levin v City & County of San Francisco (ND Cal 2014) 71 F Supp 3d 1072, a federal district court held unconstitutional an ordinance requiring landlords who sought to withdraw their rent-controlled property from the rental market to pay an extraordinary lump-sum payout to regain possession. (The formula for the payout was the monthly rental rate at the time of the notice of withdrawal, multiplied by 24.) After the city amended its ordinance in light of that decision, the Ninth Circuit dismissed the city's appeal as moot, in Levin v City & County of San Francisco (9th Cir, Mar. 13, 2017, No. 14–17283) 2017 US App Lexis 4384. See §15.19.
Because there is no specific statute of limitations for an action brought under 42 USC §1983, the federal courts look to the law of the state in which the action arises for the applicable statute of limitations. If identical §1983 claims are pursued in different forums, a federal court has held that the statute of limitations is equitably tolled in the second filed action only during the pendency of the claim in the first filed action. See Honchariw v County of Stanislaus (ED Cal, Nov. 14, 2016, 1:16–cv–1183–LJO—BAM) 2016 US Dist Lexis 157422, discussed in the Note in §16.4.
In Lynch v California Coastal Comm'n (July 6, 2017, S221980) 2017 Cal Lexis 5054, the supreme court reinforced the rule that acceptance of the benefits of a permit bars the owner from challenging the conditions of that permit. In Lynch, the property owners accepted a Coastal Commission permit to restore a seawall that protected their residential properties, but in order to proceed, they had to accept conditions that the permit will expire in 20 years and that the owners had to record a deed restriction stating that the condition restricted the properties. See §16.10A.
In a bizarre inverse condemnation case, Daniel & Francine Scinto Found. v City of Orange (CD Cal, Aug. 3, 2016, SA CV 15–1537–DOC) 2016 US Dist Lexis 102060, the court applied the U.S. Supreme Court's ripeness test enunciated in Williamson County Reg'l Planning Comm'n v Hamilton Bank (1985) 473 US 172, 105 S Ct 3108, when the plaintiff presented the court with an inadequate record with which to determine whether there was any definitive municipal action to bar a church from use of property. See §16.11.