Direct Condemnation Action Needed to Conduct Statutory Pre-Condemnation Studies

For the first time in 38 years, a court has declared part of California’s statutory eminent domain law unconstitutional. On March 13, the Third Appellate District Court of Appeal, in Property Reserve, Inc. v. Super. Ct. of San Joaquin County, found that the pre-condemnation entry statutes (Code of Civil Procedure sections 1245.010 et seq.) violate the takings provisions of article I, section 19 of the California Constitution. The Appellate Court ruled that any entity wishing to conduct statutory pre-condemnation studies must do so in a direct condemnation action. Assuming this decision is reviewed by the Supreme Court, it remains to be seen how courts will handle agencies’ access needs in the interim. If not overturned by the California Supreme Court, the ruling will impose more work on condemning agencies and the courts. Furthermore, this decision could also negatively impact property owners because they may now need to defend against an eminent domain action instead of a less expensive, less time consuming petition under the entry statutes.

The entry statutes, enacted in 1976, permitted 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.) While the entry statutes allow an entity to conduct these surveys prior to and without resorting to condemnation, they do provide the affected property owner with safeguards. For example, the entry statutes provide that any such agency must get the property owner’s consent to conduct these studies, or, if consent is refused, get an order from a court. Further, these statutes provide that a deposit of probable compensation be made and ultimately paid to the owner for actual damages to the property and interference with its possession and use.

In Property Reserve, the State of California petitioned for an order for entry to conduct two general categories of pre-condemnation activities: (1) geological activities (soil testing, boring and backfilling any holes with a cement grout mixture), and (2) environmental activities (take surveys, mapping, minor soil samples, and observe wildlife). On appeal, the court confirmed that the proposed geological activities constitute a taking per se. The Appellate Court further ruled that the environmental activities constitute a taking of a compensable property interest similar to an easement. Thus, the Appellate Court found that these pre-condemnation entry statutes were unconstitutional.

Based on this ruling, an entity would have to condemn prior to conducting these minimally invasive tests. As the dissenting opinion of Judge Blease states, the majority’s opinion finding the entry statutes unconstitutional “does so without according the statutes the simplest presumption of constitutionality.”