The headline of this post is clickbait, of course, since the California Court of Appeal didn't formally file an amicus brief in favor of the government in Property Reserve, Inc. v. Dep't of Water Resources, No. S217738, a case now pending in the California Supreme Court. But the court's opinion in Young's Market Co. v. Superior Court, No. D068213 (Nov. 19, 2015), published late last week, sure does seem like a brief in support of the Department of Water Resources in that case.
Property Reserve is the case which has been briefed and is awaiting oral arguments, in which the California Supreme Court is considering whether precondemnation entries sought by the California Department of Water Resources conform to the "entry statute," or are so extensive as to be takings triggering the protections of the eminent domain code. In that case, a different Court of Appeal concluded the proposed entries were takings.
We were all set to bring you the details of Young's Market when our colleagues at the California Eminent Domain Report beat us to the punch, with this writeup and analysis of the opinion. We suggest you read their post, and we won't repeat the details of the case here. Suffice it to say that the Court of Appeal in that case didn't see things the same way as the Court of Appeal in Property Reserve, and concluded that the entries which the condemnor sought were not as extensive, and did not interfere with the owner's use and enjoyment of its property. A couple of things, however, stood out to us:
- The court viewed the entry statute's procedures as an "eminent domain proceeding" See slip op. at 17 ("The present entry statutes provide for a an eminent domain proceeding by which a petitioner is authorized to
conduct a broader range of examinations, including "tests," "borings" and "samplings." Indeed, the entry statutes authorize only temporary entries for the limited purpose of engaging in "activities reasonably related to acquisition or use of the property" for the particular use that the property is to be acquired by eminent domain.) Problem is, under the California Constitution, real eminent domain proceedings have one more element: the right to have a jury determine compensation.
- The court repeated the error two sentences later, so this wasn't just an oversight: it really did believe that the procedure under the entry statute -- which admittedly look somewhat like eminent domain in that it has things like deposits, unwilling entry, and the like -- was an eminent domain proceeding, so what's the beef? See, for example, this passage:
- "Such a proceeding is precisely what is permitted under the California Constitution, article 1, section 19's second clause, that is, an eminent domain proceeding with a deposit of a court-determined amount of compensation prior to entry: 'The Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount of just compensation.'" (Cal. Const., art. I, § 19.)" Slip op. at 18. Perhaps, but what about the first (jury) clause? The entry statute proceedings are not eminent domain proceedings.
- The court also got wrong the physical occupation doctrine, which views permanent physical occupations, regardless of how minor, as takings. You know, Loretto. The court of appeal held that the condemnor's activities here didn't result in a physical occupation -- the work took a few days, and didn't impact Young's Market's buildings -- but the test borings were filled, which to us looks pretty permanent and pretty physical, even though it is hard to see how this had much of a long-term impact. But one thing Loretto teaches is that it doesn't matter. That cable box was pretty de minimus, even though the court of appeal saw it as more ... de maximus, and the court grafted this little piece on Loretto:
- The court concluded that the installation of the cable box on Ms. Loretto's roof would "presumably" have required follow up visits by the cable guys, and here, there was no such proposal. Slip op. at 23-24 ("After that time, District does not claim any property right, recurring right to enter, or right to continually monitor the testing areas, as the cable companies presumably would monitor or service their permanently affixed cable boxes in Loretto, supra, 458 U.S. 419, or permanent appropriation as the government committee did in Horne v. Department of Agriculture, supra, 135 S.Ct. 2419."). Where did the court get that one? We don't recall there being any after-installation entries at issue in Loretto.
All of this was the subject of an amicus brief which we filed in Property Reserve, and we think that case should resolve this one too, or at least provide the analytical framework the courts can apply.
In response to the Court of Appeal's love letter to the entry statutes in Young's Market, we expect a petition from the property owner, or at least some kind of effort to hold off the court's ruling until the Supreme Court decides Property Reserve. Stay tuned.