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CALIFORNIA EMINENT DOMAIN LAW BLOG

Redding sued over Cypress Avenue Bridge construction; Redding Record Searchlight, 5/28/09

By Scott Mobley

Two property owners have sued Redding for inverse condemnation, saying Cypress Avenue Bridge construction robbed them of income from a pair of office buildings just east of the span.

The suit, filed in Shasta County Superior Court late last month, seeks unspecified compensation for taking the property and other damages.

Richard Downs, a real estate agent in Redding, and W. Jaxon Baker, a developer, own 100 and 150 Cypress Ave. The dark brick and glass buildings once housed Placer Title, but these days are leased by Cypress bridge contractor Kiewit Pacific and PB Americas, the consultant the city hired to manage construction at the bridge and Stillwater Business Park.

In their complaint, Downs and Baker claim the city “entered onto, physically invaded, damaged and took possession” of their property without permission, judicial authorization or just compensation, mainly by blocking access.

Bridge construction has devalued the property and deprived the owners of investment income, according to the complaint.

The suit also accuses the city of causing more than $100,000 in physical damage to the property.

Finally, the suit claims city dickering over whether to take the property by eminent domain cost Downs and Baker rental income.

Redding must answer the suit by June 8 and has yet to file a response, said Lynette Frediani, the assistant city attorney handling the case.

But the city will deny all three allegations, Frediani said.

“None of the construction activities undertaken by the city on the Cypress bridge project has blocked, restricted, or impaired access to the plaintiffs’ property,” Frediani said. “In fact, the access to their property is via Hemsted Drive, not Cypress Avenue where the project work is being conducted.”

Frediani will argue Downs and Baker have no inverse condemnation case against the city, noting courts have denied compensation to property owners with land abutting streets widened for better traffic flow.

Courts have maintained even restricted access because of construction doesn’t amount to a taking of property – especially if the restriction is temporary, Frediani said.

Frediani also denied the city waffled on eminent domain at 100 and 150 Cypress Ave.

Redding did try, and failed, to negotiate for the property before groundbreaking in 2007. And the city also started the eminent domain process for the property, Frediani said.

But Redding officials wound up redesigning bridge construction so the land would not be needed, Frediani said. The city never held an initial eminent domain hearing.

Downs and Baker don’t have a solid foundation for claiming costs from any delay between the city’s initial intention to start eminent domain and abandoning it, Frediani said.

A California court once found a 15-year delay between an agency’s tentative decision to take land for a freeway and its actual seizure of that land through eminent domain “reasonable,” given the lengthy required environmental studies, she said.

Kiewit started work on the $76 million Cypress bridge replacement in April 2007 and must finish by December 2010 under its contract with the city.

Redding Record Searchlight: http://www.redding.com

TEMECULA: City suing to secure land for wetlands, habitat; North County Times, 5/11/09

By Aaron Claverie

┬áTEMECULA —- The city has filed two lawsuits against a landowner to acquire about 3 acres of land near Temecula Creek, parcels the city wants to convert into riparian habitat and wetlands.

The city is required to provide the habitat and wetlands to replace the federally protected land that is being paved over to widen Pechanga Parkway, a $26 million project to alleviate traffic congestion in the southern section of the city.

John Heffernan, manager of Borchard-Temecula LP, said that he expects the city and his Newport Beach land-holding company will broker a settlement that has the city paying about $36,000 for the land, about 20 percent more than the land had been appraised for.

“We don’t want to go to trial,” Heffernan said.

The city this year is expected to finish widening the parkway, a heavily trafficked corridor that carries Redhawk and Pechanga Resort & Casino traffic, from four to six lanes, three lanes in each direction from the bridge at Temecula Parkway to Wolf Valley Road.

The widening project, which started last year, is being paid for with about $18 million in fees from the Wolf Creek residential development, which is located on the east side of the parkway —- plus $4.4 million from the Pechanga tribe, a $4 million federal grant and reimbursements from various other agencies.

The city filed two separate lawsuits against Borchard-Temecula in February to condemn two parcels of land through the eminent domain process after an agreement couldn’t be reached on a price.

Heffernan said his company’s position was that the land the city was looking to buy should be the same price as the acreage that was taken by the city when Borchard-Temecula was developing a shopping center near the intersection of the Avenida de Missiones and Temecula Parkway.

“That’s the real number,” he said, dismissing the appraised value of the parcels that was submitted to the courts by a Simi Valley-based real estate appraiser.

City officials declined to comment on the suits.

The sequence of events that led to the city filing multiple lawsuits to create a relatively small patch of open space has its beginning in the sometimes convoluted process of building a road that cuts through a waterway, in this case Temecula Creek.

According to the narrative detailed in the text of the lawsuit, the city built storm drain facilities as it worked to widen Pechanga Parkway.

Building those facilities resulted in “permanent impacts” to one-tenth of an acre and temporary impacts to two-tenths of an acre of wetland waters regulated by the U.S. Army Corps of Engineers and the Regional Water Quality Control Board.

It also caused permanent impacts to about an acre of riparian habitat, which is river bank vegetation that is regulated by the California Department of Fish and Game.

When a public entity does anything that affects protected wetlands, it is required to compensate for that action.

In the small print of the suit, the city is proposing maintaining the wetlands for 5 1/2 years and then offering the land back to Borchard-Temecula.

Heffernan said it makes more sense for the city to keep the land and he said it could be converted into a linear park or a trail for horses.

North County Times: http://www.northcountytimes.com

COPYRIGHT © 2010 Arthur J. Hazarabedian, Esq.