WHAT ARE MY RIGHTS?

Redevelopment and street widening programs typically means the City or redevelopment agency has to take private property in order to accommodate improvements.  The property needed for the taking could range in size anywhere from a small piece to the entire property.  This article will discuss those special issues dealing with a partial take.

CAN THE GOVERNMENT TAKE MY PROPERTY?

Generally, yes.   The government can take private property when there is a public need.

DO I HAVE ANY RIGHT TO OPPOSE THE TAKING?

Yes.  The government must first make a finding of public need during a public hearing.  The property owner can appear and present evidence against the government’s findings.  For example, when the City wants to take a piece of property for street widening, the typical finding of need is that the streets are over-burdened and the only way to ease the burden is to widen the street.  Use of the private property is the only way to widen the street.  One objection by a property owner may be that widening the street on the other side of the street is less intrusive or that the planned width is not necessary.

WHAT AM I ENTITLED TO FOR THE PROPERTY THAT IS BEING TAKEN?

Under the United States Constitution and State law, you are entitled to receive the fair market value at the time the property is taken.  California law requires the taking agency to first appraise the property and negotiate in good faith to purchase the property for a fair price.  If the property owner and the agency cannot agree on a price, the agency must then file an action in court for eminent domain.  During the trial, the agency and the property owner will provide expert testimony about the value of the property.

ONLY A SMALL PIECE OF MY PROPERTY IS BEING TAKEN, WHAT CAN I DO ABOUT THE PROPERTY THAT REMAINS?

Many times this is the most difficult part of the eminent domain process.  The agency may only need 10 feet along the street.  However, the extraction of that small piece may have serious impact on the remainder of the property.  You are entitled to receive compensation for this damage as well.  If the small take has the effect of eliminating all reasonable use of the property, the agency will have to take the entire property.  It is because of this reason that many times the agency will bend over backwards to implement mitigating features that will still allow the remaining portion of the property to be useful.

SOME OF THE PROBLEMS THAT ARISE IN A PARTIAL TAKE CAN INCLUDE:

·         Non-conforming buildings.  City codes required set back from the property line.  Many times the building and parking lot maximized the use of the property by building up to the required set back.  When the property is taken, the property line is moved in and so is the set back limit.  As a result the building is now within the set back area.  Because the agency taking the property is also the agency enforcing the zoning codes, the agency ignores the violation.  While this may appear to be helpful, there are serious problems with this situation.  The property owner will not realize the problem sometimes until many years later.  The problem is that, as a non-conforming building, the property owner may be prohibited from making building modifications or from changing the use of the property.  This affects the resale value of the building and the financing capabilities.

·         Smaller property which is no longer capable of a higher use.  For example, prior to the take the property was occupied with a low-density residential or an industrial use, while at the same time the property was zoned for retail or higher density residential use. The property had adequate area for the retail use or higher density residential use and, at some time in the future, the property owner would be able to improve the use on the property or sell it to a developer who would develop the property with the higher use.  But, as a result of the take, the area required for parking or landscape set backs is no longer available.  While the City will permit the existing use, the property owner may be foreclosed from later renovating and changing to a retail use or higher density residential use.  This is a lost value to the property owner.

·         Access inhibited or inconvenient.  Many times the loss of street frontage will reduce the size of the driveway or inhibit its access in some way. The change may or may not comply with existing City codes.  Either way, the change makes access less convenient for customers.  Depending on the type of business, the change will have varying degrees of impact on customers, which ultimately affects business, and the value of the building.

·         Appearance of building degraded.   Larger landscape setbacks give a property and building a richer appearance and in turn greater value.  While the City may permit the smaller set back caused by the take, and the property may still be used for its current use, the loss of the landscaping and set back from the street will give the building and property a different feel and look.  This change could affect the type and amount of customer traffic as well as the value of the building.

These are all damages to the remaining property.  The owner is entitled to recover for these damages from the agency taking the property.  Property owners may feel that they are only losing a few feet of their property and that it is not worth their time to have the offer to purchase the property reviewed by an attorney.  However, the property owner will have no recourse several years later when they try to sell the property or try to renovate the building and the money spent now will be well invested.

s:market\articles\taking

Article published by Charles Farano about receivership as a solution for slumlords.

Before

After

Before

After