By Glen Hansen
California’s eminent domain law permits acquisition of property only for a “proposed project” that is intended for public use. In City of Stockton v. Marina Towers, LLC (2009) 171 Cal.App.4th 93, ("Marina") the Court of Appeal, Third Appellate District held that the City of Stockton ("City") was unable to satisfy its burden of proving that it had the right to condemn property on its waterfront because the City’s resolution of necessity did not contain a sufficient project description.
In Marina, the City staff considered a variety of potential projects for parcels of land in the downtown area next to the Stockton Deep Water Channel. Defendant Marina Towers, LLC owned several of the parcels under consideration. The City notified Marina Towers, LLC that it was considering acquiring defendant’s parcels by eminent domain. Then, the City Council passed “nondescript, amorphous resolutions of necessity” approving the condemnation of Marina Towers’ parcels, and filed an eminent domain action to acquire the properties. The City obtained a prejudgment order for possession and acquired the property. Marina Towers fiercely contested the City’s right to condemn the property. The trial court granted City’s motion for non-suit and overruled all of Marina Towers’ right-to-take objections. The trial court determined that the resolutions of necessity were not the product of a gross abuse of discretion. Marina Towers appealed. The court of appeal reversed.
The appellate court explained that Code of Civil Procedure section 1240.030 specifies that property may be taken for “a proposed project” if three thresholds are satisfied: “(a) The public interest and necessity require the project; (b) The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; and (c) The property sought to be acquired is necessary for the project.” No public entity may condemn property unless it has first adopted a resolution of necessity that meets all statutory requirements. A resolution of necessity must contain a general statement of the public use for which the property is to be taken, a reference to the statute that authorizes the public entity to acquire the property by eminent domain, and findings that the three statutory elements of section 1240.030 have been satisfied. The public entity must hold a public hearing during which evidence must be considered to support the requisite findings. While a valid resolution of necessity is clothed with a strong presumption of finality, such presumption will not exist if the resolution’s adoption or contents were influenced or affected by gross abuse of discretion by the governing body.
In the Marina case, the court of appeal held that section 1240.030 requirements were not met by the City. The resolution of necessity was “woefully lacking in its identification of the project.” The language did not state what project was intended for the property. Rather than referring to a specific statute, the resolution simply stated a laundry list of statutes setting forth a plethora of possible purposes for condemning property. The City even conceded that it did not have any specific purpose in mind when the condemnation was initiated. The appellate court explained that:
[a] hopelessly obscure description of the project in a resolution of necessity cannot be justified simply because the governing body has in-canted every statutorily authorized purpose. A statement that the property is being taken for any or all of the authorized purposes listed in the Government Code or Code of Civil Procedure amounts to a failure to disclose the purpose of the taking.
The appellate court explained that it is “a physical and legal impossibility” for legislators to make the determinations required under section 1240.030 if the resolution contains no intelligible description of what the project is. Also, by deliberately failing to define the project and couching the resolution in such vague language that no one could definitively determine what use the legislative body had in mind for the property, the City could both evade all of the environmental protections under CEQA and preclude judicial resolution of several right-to-take defenses authorized by eminent domain law. As the court of appeal summarized the facts: “This is a case of “condemn first, decide what to do with the property later.”
The appellate court therefore found that the City’s resolutions of necessity were affected by a gross abuse of discretion, depriving the resolutions of their conclusive effect. Marina Towers challenge to the facial validity of the resolutions was meritorious and the City had no right to take the property. The court of appeal held that the trial court erred in granting the non-suit, reversed with directions to order a conditional dismissal of the action, and ordered the City to pay Marina Towers’ litigation expenses.
Glen Hansen is a senior associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.