Law Offices of Donald W. Detisch
Article I, Section 19 of the California Constitution provides: “Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. The Fifth Amendment of the United States Constitution provides, in part: “[N]or shall private property be taken for public use, without just compensation.”
The power of eminent domain arises as an inherent attribute of sovereignty, which is used when it is necessary for the government to act. Properly exercised, the eminent domain power effects a compromise between the public good for which private land is taken, and the protection and indemnification of private citizens whose property is taken to advance that public good. The Fifth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, and California Constitution, Article I, Section 19 require this protection of private citizens’ property.
Eminent Domain law allows the government to acquire or take private property when the public good and necessity demand or permit such acquisition. The power of eminent domain may be exercised to acquire property only for a public use. Where the legislature provides by law that a use, purpose, object or function is one for which the eminent domain power may be exercised, such action is deemed to be a declaration by the Legislature that such use, purpose, object, or function is a public use. Common public uses are street widenings, parklands, utility easements, redevelopment and the removal of blight, schools, fire and police stations, public works and buildings, etc.
The power of eminent domain may be exercised to acquire property for a proposed project only if the following are established: (1) The public interest and necessity require the project; (2) The project is planned or located in the manner that will be most compatible with the greatest public good and least private injury; and, (3) The property sought to be acquired is necessary for the project.
Generally, the Government is required to have the property appraised by a qualified appraiser prior to the initiation of an eminent domain proceeding. Once the appraisal is completed and approved, the government will make an offer to purchase the property. The owner can accept or reject the offer. If rejected, the government generally will request its governing body to adopt a resolution of public convenience and necessity, which authorizes the filing of an eminent domain proceeding in the judicial jurisdiction where the property is located. If the Government seeks immediate possession of the property it is required to deposit a sum of money with the court. Such a deposit is known as the amount of probable compensation. This amount must generally be based on an appraisal.
The property owner may withdraw the probable compensation deposit prior to a trial and prior to title passing to the government. Despite the withdrawal of these funds, the property owner still has the right to contest the fair market value of his or her property.
Condemnation generally means the same as an eminent domain proceeding, whereby the government seeks to acquire private property for which it must pay just compensation. Just compensation is measured in terms of fair market value. This concept should not be confused with the Government’s power to condemn a public nuisance, etc., which, while related in some respects, is wholly distinct.
There are generally two types of condemnation - direct condemnation and inverse condemnation. Direct condemnation occurs when the government initiates a legal action to acquire or take your property. Simply stated, the government is a plaintiff in a lawsuit against you, the property owner. Inverse condemnation is an eminent domain proceeding (or condemnation) initiated by the property owner rather than the condemnor (the government). The principles which affect the parties’ rights in an inverse condemnation suit are the same as those in an eminent domain action. Generally, an inverse condemnation action is filed when the government undertakes some type of activity (either physical or land use control, or the like), which a property owner believes has damaged his/her property. The government may well disagree. Examples include flooding onto private property as a result of a public project (physical) or the application of a zoning ordinance to private property (land use control) that prohibits use of that property.
These are just a few informational matters relating to the complex legal area of eminent domain law. This office is particularly well versed in this area and can help either a public entity or private property owner. The acquisition of property, particularly for the owner of private property by an entity through the eminent domain process, can often be traumatic.
This firm works to alleviate that trauma and to achieve the best result for both parties.
There are a myriad number of complex questions which can arise. Anyone who is not an experienced practitioner in this area should not attempt to undertake representation in these matters.
A full discussion of the other matters that this office handles would require an extensive description. Moreover, such a voluminous description would undoubtedly omit or overlook some facet of those particular practice areas. We are always willing to discuss your particular questions and issues with you. We invite you to contact us directly, so we can determine whether your particular matter falls within our area of expertise. Even if we cannot help you, we will do our best to get you to someone who can.
Our fees are commensurate with those of other practitioners with similar experience and expertise. Fees are always a subject of negotiation by and between this office and the client. Please do not hesitate to inquire regarding our fees upon your visit to our offices.
