SACRAMENTO, Calif., July 21, 2016 /PRNewswire/ -- The California Supreme Court issued a major ruling on July 21, 2016, affecting Governor Jerry Brown's plan to tunnel under the Bay Delta as part of a new water delivery system from northern California to southern California. The issue in this case was how far can such entries go without becoming a taking? For anything more than a short reconnaissance visit, the owner must be paid rent for the use of the land.
Defining a "taking" was an issue the Court had not reviewed in over 90 years, when it previously ruled that governmental entities contemplating acquiring land for a public project may only make minor entries to investigate the land before filing for condemnation.
In 2009, the California Department of Water Resources (DWR) petitioned the court to enter over 150 properties in five counties within the Delta area for extensive geological and environmental testing. California provides what is called an entry statute to facilitate pre-condemnation investigations of property. If an owner does not agree to such entry, the governmental agency may petition the court for an order, subject to a deposit only for potential damages that may arise. There is no payment for use of the privately held land.
The law firm Matteoni, O'Laughlin & Hechtman of San Jose represented one of the major property owners affected – Property Reserve, Inc. "We're disappointed. The Court upheld the statute as authorizing the type of activities DWR sought. But it agreed with the property owners that the statute did not provide for the right of a jury trial for compensation of damages that may occur. There will be continued litigation as the Court referred the matter back to the appellate court. Finally, it acknowledged that the right to a jury trial also involves other issues such as discovery and participation by tenants and easement holders on the property," said attorney Norman Matteoni.
The entries sought were for extensive environmental studies of plant and animal species by teams of two person investigators for multiple days over a two-year period and for soil borings to 150 and 300 feet, with extraction of material and storage of that material and equipment on site for each boring for approximately two weeks.
The trial court said the borings were a taking, but allowed the environmental investigations to go forward with a limitation of no more than 66 days during the course of one year. Both sides appealed.
The 3rd District Court of Appeal ruled in favor of the property owners on both counts – that it was unconstitutional to allow government entry on their land without being compensated.
About Matteoni, O'Laughlin & Hechtman
The firm is widely respected as one of the leading eminent domain (condemnation), land use, real property and environmental law firms in California. Matteoni, O'Laughlin & Hechtman represents property owners, businesses and public agencies throughout California. Founded in 1979 by Norman Matteoni — author of "Condemnation Practice in California"—the firm has been named the top small (2-10 attorneys) real estate law firm in California by Super Lawyers 2013-2015. They have also been recognized by U.S. News & World Report as: "Best Law Firms in (1) Metropolitan First Tier Litigation Eminent Domain and Condemnation Law and (2) Metropolitan First Tier Land Use and Zoning Law from 2010 to present. www.matteoni.com
SOURCE Matteoni, O’Laughlin & Hechtman