Posted by: Patricia Salkin | April 9, 2009

California Appeals Court Reminds Cities Must Decide “Public Use” Before Condemnation

When the California Court of Appeal began its February opinion with the statement, “This is a case of ‘condemn first, decide what to do with the property later,’” the outcome was pretty clear.  In 2003, the city of Stockton adopted a “resolution of necessity” for the condemnation of two parcels owned by Marina Towers, LLC.  One parcel was unimproved and the other held a vacant office building.  City officials said the parcels were within a “catalyst site” for a revitalization project.  Years earlier, the city had adopted a Central Stockton Final Plan/Revitalization Plan, but neither the plan nor the later resolution of necessity specified the proposed public use for the Marina Towers parcels.


The company objected, but was unsuccessful in 

convincing the trial court that the resolution of

necessity was defective because it didn’t identify the property’s public use.  While the litigation was pending, the city built public parking and a ballpark on the parcels.  Marina Towers was paid $1.97 million as compensatory damages for the taking.


The court of appeals reversed and remanded.  The importance of identifying the purpose of a condemnation is spelled out in several places, the court said, including the eminent domain law and the California Environmental Quality Act, which requires the government to perform an environmental review of the “project”.  Identifying the project is also an integral component of the property owner’s right to procedural due process, it added.


However, the city’s resolution of necessity “simply trots out a laundry list of statutes setting forth a plethora of possible purposes for condemning the property,” it continued.  The court gave Stockton a second chance to get it right and adopt new resolutions of necessity for parcels, but required the city to pay Marina its reasonable litigation expenses. 


City of Stockton v. Marina Towers, LLC, 2009 WL 352559 (2/13/2009).


The opinion can be accessed here


Read what the InverseCondemnation Blog has to say about this case here, and the Abbott & Kinderman Land Use Law Blog here


This summary by Lora Lucero, Esq., AICP appears in the April issue of Planning Magazine.



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