The Sixth District of the California Appellate Court recently reversed a trial court opinion dismissing a condemnation action and awarding legal fees. San Benito County v. Hollister, Inn (Docket CU-06-00051& CU-06-00054 September 19, 2012).
Following a trial on the County’s authority to use eminent domain (“right to take”), the court found that the County had “committed a gross abuse of discretion by failing ‘to consider the possibility of taking the property of an adjoining landowner to provide [respondent Hollister Inn] access to Highway 25′ pursuant to section 1240.350.” In addition, “safe alternate access was removed from the plans and [the County] was warned by the trusted and competent project manager that the condemnation of the proposed alternate access from [respondent's] property to Highway 25 would violate the law prohibiting the taking of private property from one private party for the benefit of another private party.”
The trial court also recognized that Hollister Inn’s property was not “landlocked since it had access to San Felipe Road but determined that section 1240.350 did not apply to only landlocked properties. The court concluded that, “as a matter of law,” “a plain reading of CCP § 1240.350″ permitted condemnation to provide an alternative access to the highway since access to that highway had been cut off.” (Slip op. at 11-12).
In sum, the property owner objected to the taking because the County took its direct highway access and failed to take property from a neighboring owner to provide substitute highway access as permitted by California statute. The County argued that it was only permitted to take private property from a neighboring owner to benefit an adjacent private property owner where the latter’s parcel became landlocked due to the loss of access.
The trial court agreed with the property owner and dismissed the action and awarded reasonable legal fees and expenses to the property owner in the amount of $223,700.
The appellate court reversed the dismissal and the award of attorneys’ fees. The appellate court interpreted the California statute to mean that it only applied where the property became landlocked after the taking. In other words, a condemnor is only permitted to condemn private property to provide access to landlocked properties. Since the Hollister Inn had alternative access, the County was not required or permitted to provide substitute direct highway access by condemning an adjacent parcel.
New Jersey does not have a similar statutory provision, but case-law permits the acquisition of nearby private property and conveyance to another private property owner to mitigate damages caused by a partial taking. There are also several New Jersey cases dealing with loss of highway access and damages caused thereby.
- Court to weigh if payment needed for permit denial (kansascity.com)
- Tomorrow’s Important Regulatory Takings Case Before the Supreme Court (volokh.com)