Prop. Reserve, Inc. v. Superior Court of San Joaquin Cnty.
| Decision Date | 13 March 2014 |
| Docket Number | C067758,C068469,C067765 |
| Citation | 168 Cal.Rptr.3d 869 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PROPERTY RESERVE, INC., Petitioner, v. The SUPERIOR COURT of San Joaquin County, Respondent; Department of Water Resources, Real Party in Interest. Carolyn A. Nichols, as Trustee, etc., et al., Petitioners, v. The Superior Court of San Joaquin County, Respondent; Department of Water Resources, Real Party in Interest. Coordinated Proceedings Special Title (Rule 3.550) Department of Water Resources Cases. |
Matteoni, O'Laughlin & Hechtman, Norman E. Matteoni, Gerry Houlihan, San Jose; Kirton & McConkie and Christopher S. Hill, Salt Lake City, for Petitioner and Appellant Property Reserve, Inc.
Freeman, D'Aiuto, Pierce, Gurev, Keeling & Wolf, Thomas H. Keeling, Arnold J. Wolf, Stockton; Downey Brand, Scott D. McElhern, Sacramento; Nomellini, Grilli & McDaniel, Dante J. Nomellini, Jr., Stockton; Somach Simmons & Dunn and Daniel Kelly, Sacramento, for Petitioners and Appellants Carolyn A. Nichols et al.
No appearance for Respondent Superior Court of San Joaquin County.
Kamala D. Harris, Attorney General, Steven M. Gevercer, Assistant Attorney General, Alberto Gonza´lez, John M. Feser, Jr., Michael P. Cayaban, and James C. Phillips, Deputy Attorneys General, for Real Party in Interest and Appellant.
Best Best & Krieger and Stefanie D. Hedlund for State Water Contractors as Amicus Curiae on behalf of Real Party in Interest and Appellant.
This case tests the strength of the constitutional rights granted landowners against the state's authority to take private property. The State of California (the State) seeks to build a tunnel to transport water from the north to the south. Before condemning the land needed for the project, it desires to study the environmental and geological suitability of hundreds of properties on which the tunnel may be constructed. The difficulty here is that those precondemnation activities may themselves be a taking; an intentional taking the California Constitution has always required to be directly condemned in a condemnation suit brought by the condemner that provides the affected landowners with all of their constitutional protections against the exercise of eminent domain authority, including the determination by a jury of just compensation for the value of the property interest intentionally taken.
Pursuant to a statutory procedure that purports to authorize these precondemnation activities, the State petitioned the trial court for orders to enter the affected private properties and conduct the studies. For the geological studies, the State requested authority to enter the properties and conduct borings and drillings in the ground that would leave permanent columns of cement in the bored holes up to depths of 200 feet. The court denied the State's petition for the geological activities. It ruled these activities constituted a taking, and they could be authorized only in a direct condemnation action, not by the precondemnation procedure.
The trial court, however, granted the State's petition to enter the affected properties to conduct environmental studies. It effectively granted the State a blanket temporary easement for one year, during which the State may enter the properties and conduct its studies for up to 66 days during the year with up to eight personnel each entry. The court concluded such access and the environmental activities to be performed did not work a taking. As required by the statutory procedure, the court conditioned the environmental entries on the State depositing an amount of money the court determined to be the probable amount necessary to compensate the landowners for actual damage to, or substantial interference with their possession or use of, their properties, which the State's activities may cause.
The State appealed from the trial court's denial of its petition to conduct the geological activities. The gist of the State's appeal has been the court erred in denying the geological petition and the State can perform the activities under the statutory precondemnation procedure, but the State's arguments for why it believes the court erred have changed and contradicted each other throughout this litigation such that its latest concession defeats its appeal.
The landowners petitioned and appealed for relief from the trial court's granting the State authority to conduct the environmental activities. They claimed the court erred in granting the environmental petition because the entries constitute a taking that cannot be acquired through the statutory entry proceeding but must instead be directly condemned in a condemnation suit.
We conclude both the geological activities and the environmental activities as authorized will work a taking. The geological activities will intentionally result in a permanent physical occupation of private property, defined constitutionally as a taking per se. The environmental activities will work a taking because they intentionally acquire a temporary property interest of sufficient character and duration to require being compensated.
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.
Eminent domain authority must be exercised in strict conformity to the constitutional protections and procedures that limit its operation. If a condemner intends to take private property or 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. Based on that fundamental state constitutional doctrine, we affirm the trial court's order denying entry to conduct the geological activities, and we reverse the order granting entry to conduct the environmental activities.
The State proposes to construct a tunnel or canal to divert fresh water from Northern California around the Sacramento–San Joaquin River Delta to Central and Southern California. To pursue the proposal, the State, by and through the Department of Water Resources, sought to conduct surveys, tests, and borings on parcels of land that could potentially be acquired for locating and constructing the project. In 2009, the State filed numerous petitions pursuant to Code of Civil Procedure section 1245.010 et seq. () for orders for entry to conduct the studies and borings. Ultimately, the petitions were judicially coordinated, and the State filed a master petition to obtain the rights of entry. The coordinated proceedings affect more than 150 owners of more than 240 parcels in San Joaquin, Contra Costa, Solano, Yolo, and Sacramento Counties.
The properties, totaling tens of thousands of acres, are used primarily for various commercial agriculture enterprises, cattle ranching, and recreation. Many of the parcels are improved with residences, barns and other outbuildings and storage facilities, wells and irrigation systems, utilities, roads, and other infrastructure. Many are also encumbered with easements in favor of various public utilities, including reclamation districts that maintain levies on the properties.
With its master petition, the State sought entry onto these properties for the following precondemnation purposes: "(1) to investigate potential impacts of a water conveyance system to, among other things, biological resources, water resources, environmental resources, geology, archeology and utilities found on the Subject Properties; (2) to investigate the feasibility of alternative types of water conveyance systems, the best alternative conveyance alignment location, and the best alternative corridor location within each alternative conveyance alignment location; (3) to investigate the various types of conveyance systems, including surface level canals, surface level pipelines, and buried tunnels; (4) to investigate conveyance alternative locations, including a west alignment, a through-Delta or dual alignment, and an east alignment, and (5) to investigate whether a water conveyance system should be constructed in the Delta."
The State sought authority to conduct what it designated as two general categories of precondemnation activities: environmental activities and geological activities. It sought to conduct the environmental activities on all of the parcels in the coordinated action, and to conduct the geological activities on selected parcels. It alleged the activities would require entry for a total of 60 intermittent 24–hour days spread over a period of two years for each of the parcels.
In general, the environmental activities consisted of various surveys to determine and document each parcel's botany and hydrology; the existence of sensitive plant and animal species; the existence of vernal pools, wetlands, and other animal habitat; the existence of cultural resources and utilities; and the parcel's recreational uses. Personnel would also map the properties using aerial photography and large targets secured by stakes. Personnel would take minor soil samples, and they would observe and trap certain animal species. They would access the...
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Prop. Reserve, Inc. v. Superior Court of San Joaquin Cnty., C067758
...168 Cal.Rptr.3d 869PROPERTY RESERVE, INC., Petitioner,v.The SUPERIOR COURT of San Joaquin County, Respondent;Department of Water Resources, Real Party in Interest.Carolyn A. Nichols, as Trustee, etc., et al., Petitioners,v.The Superior Court of San Joaquin County, Respondent;Department of W......