In a recent case, Property Reserve, Inc. v Superior Court, 224 Cal.App.4th 828 (2014), the Third District California Court of Appeal ruled that entry statutes are unconstitutional when the activities for which the entry is sought constitute an intentional taking of property without the full protections afforded by a condemnation action. More specifically, the Court ruled that the pre-entry condemnation statutes, (found in Code of Civil Procedure sections 1245.010 et seq.) violate the takings provisions of article I, section 19 of the California Constitution.
These entry statutes were enacted in 1976 and permit a condemning agency to enter a property “to make photographs, studies, surveys, examinations, tests, soundings, borings, samplings, or appraisals” prior to actually condemning the property to be studied. (Code of Civil Procedure section 1245.010.) Under the statute, the landowners consent is required to conduct these studies, or, if consent is refused, the agency must request an order from a court. Additionally, the court may require that the condemnor deposit into court an amount of probable compensation for any damage sustained by the property as a result of the state’s activities thereon.
At issue in this case was the State’s request for Orders under the entry statutes, to allow it to enter onto 240 parcels of land and conduct geological and environmental studies of properties’ suitability for construction of a tunnel or canal to divert fresh water from Northern California around the Sacramento- San Joaquin River Delta to Central and Southern California.
The geological studies entailed boring into the ground as far as 200 feet, creating holes anywhere from 1.5 to 6 inches in diameter, and removing soil core samples for study. These holes would then be filled with a permanent cement/bentonite grout- this proved to be an important deciding factor in the Court’s rationale.
The environmental studies, on the other hand, entailed various activities including species surveys (setting and monitoring small traps), collecting samples of vegetation and soil scrapings, and aerial mapping using targets installed on the property.
The state alleged that both types of studies would require entry for a total of 60 intermittent 24-hour days spread over a period of two years for each of the parcels.
The trial court authorized the state to conduct the environmental studies on the properties but denied their request for geological studies. The court’s order permitted up to 66 days of entry over a one-year period and up to eight people per entry, as well as authorization to leave traps and mapping markers on some of the properties for several weeks. The court also ordered the State to deposit $1,000 to $6,000 per owner based on the amount of property owned as probable compensation for actual damages or substantial interference with the owner’s use or possession of his property the entries would cause.
Both sides appealed.
For separate reasons, the Court of Appeals found that both the geological and environmental studies would effect a taking or intentional damage of property; thus the filing of a condemnation action would be a pre-requisite to the state’s entry upon the property for such purposes.
The Court found that the geological studies were a per se taking because the cement compound poured into the bored holes would “permanently occupy part of the property.” Citing to Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), the Court noted that “[A] permanent physical occupation is a government action of such a unique character that it is a taking without regard to other factors that a court might ordinarily examine” and that “[W]hen the `character of the governmental action, is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.” (citations omitted).
As to the environmental studies, the court noted that, while they would not constitute a per se taking, the following factors established by prior case law in the state in effect resulted in a taking of the property: 1) the degree to which the invasions are intended; 2) the character of the invasions; 3) the duration of the invasions; and 4) the invasions’ economic impact on the landowners. In considering these factors and the duration of the State’s activities on the property (66 days over a one year period), the court found that this substantial infringement would essential constitute a two month temporary easement for which a condemnation action was required.
The Court also found that the pre-condemnation procedure did not adequately protect landowner’s rights:
We also conclude the statutory precondemnation procedure cannot be used to accomplish these intentional takings. If an entity with the power of eminent domain intentionally seeks to take property or perform activities that will result in a taking, the California Constitution requires that entity to directly condemn the affected property interest in an authorized condemnation suit it brings and in which a landowner receives all of his constitutional protections against eminent domain. The statutory precondemnation procedure does not provide such a suit, as it fails to authorize the determination of the value of the property interest intentionally sought to be taken and to do so in a noticed hearing, and it fails to provide for a jury determination of just compensation in that hearing.
Finally, the court cautioned that eminent domain authority “must be exercised in strict conformity to the constitutional protections and procedures that limit its operation.” It noted that if a condemnor intends to perform actions that “will result in the acquisition of a property interest, permanent or temporary, large or small, it must directly condemn those interests, and pay for them, in a condemnation suit that provides the affected landowner with all of his constitutional protections against the state’s authority.”
In New York, section 302 of the Eminent Domain Procedure Law allows for “pre-vesting” discovery by the condemnor, whereby, for the purposes of preparing an appraisal report, it have may inspect the property prior to vesting. EDPL 302 also requires the owner to provide pertinent data or information including books and records necessary to prepare such appraisal, upon written request by the condemnor. If the condemnor’s request for information is unreasonable or burdensome, the owner may petition a court of competent jurisdiction for relief.