The Fifth District Court of Appeal has concluded that Fresno County did have the right to pursue eminent domain proceedings in order to obtain an easement across private land required to prevent another property from being rendered landlocked by another condemnation proceeding.
The case began when the county constructed a wastewater treatment facility on land adjacent to property owned by the Donleavey family. The Donleaveys filed an inverse condemnation action. In a proposed settlement agreement, the county agreed to purchase part of the Donleavey property - and also to convey to the Donleaveys a road and utility easement across a third party's private property so that their remaining property would not become landlocked. Under the settlement agreement, the county agreed to let the Donleaveys resume her inverse condemnation suit if the county did not convey the easement to them in a timely manner.
In order to obtain the easement, the county filed an eminent domain action against owners of an adjacent property, including the Kriegbaum family and Bernadynne Shelton. But at this point, the county got caught up in a Catch-22. The Kriegbaums and Ms. Shelton argued that the county lacked standing to bring such a condemnation proceeding until it had completed the condemnation of the Donleavey property for public use. But under the settlement agreement with the Donleaveys, the county could not obtain title to the Donleavey property until it had obtained the easement from the Kriegbaums and Shelton.
The county responded by arguing that under Code of Civil Procedure §1240.350, which covers eminent domain, it had to show only that the purchase was "underway" - not that it was complete. Fresno County Superior Court Judge Stephen J. Kane ruled in favor of the Kriegbaums and Shelton and also ordered the county to pay their attorneys' fees. While an appeal was pending, the county reached a settlement agreement with the Kriegbaums and Shelton and obtained the Donleavey property.
Fresno County asked the Fifth District to move forward with a ruling even though the issue was apparently moot, arguing that the situation was likely to recur and clarity was needed. The county also wanted the Fifth District to revisit the attorneys' fees issue.
On appeal, the Fifth District ruled in favor of the county, with the issue turning on how the word "acquire" is used in the Code of Civil Procedure. The court ruled that Judge Kane had improperly "omitted the word 'acquires' from the statute and replaced it with the past tense 'acquired'." In so doing, the Fifth District said, Judge Kane had "not taken into account section 1235.050's legislative mandate that the statutes found in Title 7 of the Eminent Domain Law, of which section 1240.350 is a part, be construed so that the 'present tense includes the past and future tenses; and the future, the present."
The court also found that the Code of Civil Procedure "clearly authorized the county to initiate this eminent domain proceding against the parcel owned by Ms. Shelton."
County of Fresno v. Bernadynne B. Shelton, No. F023910, 98 Daily Journal D.A.R. 9783 (issued September 9, 1998).
For Fresno County: Philip J. Norgaard, Deputy County Counsel, (925) 335-1830.
For Shelton: Jon Wallace Upton, Kimball, MacMichael & Upton, (209) 435-5500.
Federal law pre-empts state and local power to independently review the environmental impact and land-use consequences of construction projects dealing with railroads, the Ninth U.S. Circuit Court of Appeals has ruled.
A three-judge panel of the Ninth Circuit ruled that the King County, the City of Auburn, and several other local governments in the State of Washington can't undertake their own environmental review of the federal Surface Transportation Board's decision to permit reopening of the S...
In the latest skirmish in a longrunning battle, an appellate court has overturned a trial judge's decision to strike down the City of Watsonville's decision to "pre-zone" and annex 216 acres of land in a disputed agricultural and coastal area west of Highway 1. If it is eventually published, the court ruling could be an important step in establishing the credibility of "tiered" environmental impact reports.
The unpublished ruling by the Sixth District Court of Appeal in San Jose gives Watso...
The Ninth U.S. Circuit Court of Appeals has upheld the federal government's decision to issue five broad-ranging "general permits" allowing the filling of wetlands as part of the Anchorage Wetlands Management Plan. The general permits had been challenged by several environmental groups in Alaska, which charged that they covered too diverse a range of activities and would not result in "minimal" disruption of the environment, as the federal government claimed.
The five permits, which covered projec...
The federal government's review of potential impacts of a new public clubhouse at the Presidio Golf Course was adequate under both federal environmental and historic preservation laws, the Ninth U.S. Circuit Court of Appeals has ruled. The federal analysis had been challenged by the Presidio Golf Club, a century-old private golf club which owns an historic clubhouse adjacent to the Presidio.
A predecessor to the Presidio Golf Club built the golf course on the grounds of the Presidio in 1895, as well a...
Claims that Sacramento County violated the California Environmental Quality Act while approving a commercial development have been dismissed by the Third District Court of Appeal because the project opponent did not submit a written request for a hearing within 90 days of filing a lawsuit.
The attorney for opponent Forster-Gill, Inc., argued that a telephone call to the court clerk within the 90-day period was adequate, but the appellate court disagreed, ruling that the law "plainly contemplates a written request that can be, and is, filed with the court."
A state appellate court has upheld the California Coastal Commission's denial of a development permit for a small mixed-use project in Morro Bay.
The court rejected developer Dan Reddell's arguments that the commission violated his due process and equal protection rights, and that its decision was a regulatory taking of property. Instead, the Second District Court of Appeal ruled that substantial evidence supported the commission's finding that Reddell's project was inconsistent with Morro Bay's local coastal plan (LCP).
A state appellate court has thrown out an Inyo County general plan amendment that the county argued was nothing more than a clarification of a longstanding policy.
A unanimous three-judge panel of the Fourth District Court of Appeal, Division Two, concluded that the amendment was more than a mere clarification and that the county should have completed an environmental impact report before approving the amendment.
A City of West Hollywood moratorium on new multi-family housing development has been declared invalid by the Second District Court of Appeal. The court ruled that the city had not made required findings for the moratorium.
The Ninth U.S. Circuit Court of Appeals has set back a plan to develop the country's largest solid waste landfill near Joshua Tree National Park. The court ruled that the environmental analysis for the project was inadequate and that the Bureau of Land Management undervalued land it would provide to the landfill developer.
A state appellate court has struck down a California Environmental Quality Act exemption for an air district rule permitting new power plants to offset emissions by paving roads. The court found that the Mojave Desert Air Quality Management District did not have adequate evidence to support its finding that the rule could not have a negative impact on the environment.
A developer is not entitled to reimbursement or damages from a consultant hired by a local government to complete an environmental impact report, the First District Court of Appeal has ruled. Even when the consultant fails to complete an EIR in a timely manner, the consultant owes no contractual duty to the developer that paid for the consultant, the court concluded.