We were all set to write up our in-depth analysis and post our deep thoughts on the California Court of Appeal’s opinion in Pacific Gas and Electric Co. v. Superior Court, No. C097529 (Sep. 21, 2023), a case involving the question of “necessity,” the burden of proof, and whether a legislature’s assertion that a taking is needed to accomplish the stated public use is virtually un-challengeable in court.

But before we could get to it, our colleagues Brad Kuhn and Steve Silva beat us to it, and posted “Public Agency’s Resolution of Necessity Not Entitled to Conclusive Presumption When Using Eminent Domain for Takeover of Public Utility” at Nossaman’s California Eminent Domain Report.

If you do this kind of stuff, you understand that challenges to necessity in eminent domain by property owners are generally very (very) difficult to mount. But as Brad and Steve write:

In California, when a government entity adopts a resolution of necessity to acquire property by eminent domain, that resolution typically “conclusively” establishes the requisite findings of public use and necessity. However, when the government is seeking to condemn a public utility to take over its operations, that conclusive presumption disappears. There has been an ongoing dispute about what standard of review applies in such take-over cases, and the California Court of Appeal recently provided guidance.

They write that the court concluded that the controlling statute “was plain on its face and compelled the conclusion that PG&E was entitled to actually litigate the public use and necessity issues,” and that the statute permits a “factual contest on the issues[.]” Imagine that, a property owner can actually object to a condemnor’s assertion that her property is going to be taken for a public use or purpose, and that the property is necessary to accomplish that use. Zut alors!

Now before you get too excited, remind yourself that this ruling is limited to cases in which a “electric, gas, or water public utility” is being taken over “by a local public entity, other than a sanitary district exercising the powers of a county water district[.]” Nonetheless, we’re still glad to see some breaches in the nearly unbreachable judicial wall built around necessity in general. 

We urge you to read Brad and Steve’s entire summary and analysis here.

Pac. Gas and Elec. Co. v. Superior Court, No. C097529 (Cal. Ct. App. Sep. 21, 2023)