What to make of this? A blog aimed at condemning authorities, with advice on how to avoid a claim for precondemnation damages. Okay, nothing wrong with that. Condemnors deserve good legal counsel as much as other parties. Indeed, having inexperienced counsel for the condemnor often makes resolving cases harder than it should be.
But check this out, a recent post entitled "Practice Tip to Avoid the Potential for Precondemnation Damages," which notes (in its entirety):
This is a practice tip to avoid the potential for precondemnation damages. In all project documents, refer to future land acquisitions in noncommittal, tentative, conditional language.Examples:
- “The proposed acquisition”
- “The acquisition under staff consideration”
- “The recommended acquisition”
- “No decision has been made to acquire the property”
- “Only the governing board can make the decision to acquire the property by eminent domain”
Project maps showing required acquisitions should be referred to as “studies.” Internal memos, studies, and maps dealing with the proposed project should carry disclaimers such as: “This document is for preliminary staff project study purposes. Staff has no authority to approve or implement projects or land acquisitions without prior [insert name of governing board] approval.”
Obtain legal possession of all parcels required for the project before letting any construction contracts.
Both in reality and in appearance, advise staff not to leave a paper trail suggesting that the governing board had made up its mind to acquire property for a project before CEQA compliance and the hearing on the resolution of necessity.
Whoa. If we're reading it correctly, this is a road map for agencies which actually have projects on how to play hide the ball, and then cover it up. Deny, deny, deny.
Now, we all know that agencies do this, even when they know darn well what they intend to do. But to see it spelled out in such stark terms, right there on the page, is in our opinion, breathtaking. Paint us amazed. Or maybe not. Really, maybe not.
By the way, here's how the courts consider this issue. North Carolina's Map Act, Nevada Supreme Court, California Court of Appeal.
