Editor's Note: The following article was written by Christine Souza, assistant editor of the California Farm Bureau Federaton's Ag Alert newsletter.
With several large regional or statewide infrastructure projects in the planning stages, government eminent domain issues have surfaced for rural landowners in many parts of California. Public works under consideration range from water and flood-control projects to utility upgrades to major transportation projects such as California High Speed Rail, a statewide train system for which construction is slated to start in the Central Valley.
Agencies planning such projects may attempt to acquire land through eminent domain, the power of a public agency to take private property for a public use under the Fifth Amendment.
Third-generation farmer Samuel Curran of Madera describes his property as "ground zero" for high-speed rail. He is among landowners in the path of a 30-mile stretch of the initial construction segment known as Construction Package 1, from south of Madera to Fresno.
Curran's family has been farming and ranching on the property since the 1890s, producing everything from cattle and wheat to alfalfa and grapes. Curran said he hopes his grandchildren will be given the opportunity to farm the same land that his grandfather did many years ago.
But, he said, "The high-speed rail is going to come through and tear everything up."
The state is spending about $360 million to purchase hundreds of properties along the route, including part of Curran's farm, and may use eminent domain to do so. Central Valley landowners in the path of the rail line gathered at the Madera County Farm Bureau office last week to learn more about the eminent domain process, including how to protect their legal rights and ensure they are paid a fair price when private lands are taken for a public project.
Eminent-domain attorney Andrew Turner of Turner Law in San Mateo told the group that a first step for any landowner faced with a potential eminent domain situation is to speak with a qualified attorney. In providing landowners with an overview of eminent domain, he added that private property may not be taken for public use without just compensation.
"The government can take your property, but it must pay just compensation and it cannot pay anything less," Turner said. "Just compensation is the fair market value of the property being taken and is determined by a jury, unless (that) is waived by both the government and property owner. At the end of the day, the law is supposed to make you whole."
Just compensation also includes severance damages, which he said include compensation for damage to the property that's left following the taking.
"From my understanding, the takings in this area especially are (largely) going to be 'part takes,' which is the (rail authority) is going to take portions of properties and leave you with remainders; they are not going to take the entire piece," Turner said. "So, what is the damage to the property that is left on both sides of this rail and splits the farm?"
If negotiations between the government and landowner fail, the condemning agency must provide what is called a resolution of necessity. In the case of high-speed rail, Turner said, the authority would have to provide notice to the property owner that a hearing on the proposed resolution will take place. If such a resolution is adopted, the government agency must file a complaint.
"The complaint basically says, 'We're suing the landowner or business owner to acquire your property,'" Turner said. "You, as the owner in the path of the project, get sued in eminent domain and you become the defendant. You have 30 days to answer the complaint."
During the discussion at the county Farm Bureau office, Turner also talked about landowners receiving a notice of decision to appraise, which basically asks owners if they would schedule a time for their property to be appraised.
"What do you do? I see a few options: One is to call the appraiser and schedule a time to appraise the property. You can decide to show the appraiser around so they can understand how you use the property, or you can have an attorney there. Or you can object to the appraiser coming on," he said.
Turner warned that if landowners accompany the appraiser, they should avoid potential complications by stating only "the facts."
Curran said part of his property currently being utilized for his farming operation would be affected by the high-speed rail project. Part of his land could be used for the development of two overcrossings as well as for temporary construction easements. Curran said he remains concerned about what that would mean for his property, his access from one parcel to another, and his overall farming operation.
In the meantime, Curran is not alone. Whether it be high-speed rail or any other infrastructure project, experts say it is critical for California landowners to be aware of their rights.
For more detailed information about the steps in the eminent domain process, visit the California Farm Bureau Federation website at www.cfbf.com.