Property Reserve, Inc. v. Superior Court, 2014 Cap.App.LEXUS 237
CALIFORNIA COURT OF APPEAL DECLARES CALIFORNIA STATEUS
ALLOWING FOR PRE-CONDEMNATION ENVIRONMENTAL TESTING OF
PROPERTY ARE UNCONSTITUTIONAL
A California Court of Appeal recently ruled in Property Reserve Inc. v. Superior Court, 2014 Cal. App. LEXUS 237 that the California eminent domain law allowing for pre-condemnation entry for testing, as embodied in California Code of Civil Procedure (“CCP”) § 1245.010, et seq. is unconstitutional because it fails to provide landowners with certain procedural protections embodied in the California Constitution. CCP § 1245.010 states that “Subject to requirements of this article, any person authorized to acquire property for a particular use by eminent domain may enter upon property to make photographs, studies, surveys, examinations, tests, soundings, boring, samplings, or appraisals or to engage in similar activities reasonably related to acquisition or use of the property for that use.” The entry and testing scheme allowed by CCP § 1245.010 was frequently used by public entities to determine whether targeted properties were suitable to meet the public project needs.
The Court’s ruling in Property Reserve makes clear that most environmental testing will be considered a taking that will require, at a minimum, the filing of an eminent domain complaint prior to the public entity being allowed to conduct the testing. This ruling will significantly hamper a public entity’s ability to evaluate potential acquisition sites, and may hinder the ability of public entities to approve Resolutions of Necessity to take a property by eminent domain.
Should you like more information on how your entity can adjust its procedures in light of the Property Reserve decision, please contact Brian J. Bergman at 310-470-6110 or [email protected].