The Third Appellate District Court of Appeals has ruled that pre-condemnation entry on to the property an agency is seeking to condemn may be unconstitutional. If upheld, it will ultimately create significant obstacles for agencies to overcome in attempts to progress with eminent domain actions.
Historically, California law entitled agencies to enter properties “to make photographs, studies, surveys, examinations, tests, soundings, borings, samplings, or appraisals.” The pre-condemnation entry statutes were enacted in 1976 and have allowed agencies to obtain a court order allowing testing of the property prior to condemnation.

The case that turned the tables, Property Reserve, Inc. v. Super. Ct. of San Joaquin County, challenged the agency’s entry stating that the testing and investigations planned by the agency constituted a taking. In this case, the State of California was seeking to construct a tunnel to transport water. In order to do so the State needed to conduct specific environmental and geological testing. Such testing included drilling myriad borings up to 200 feet deep on the properties and inspecting the properties over a one year period. The property owners argued that they were entitled to just compensation for the investigations because they constituted a taking. The State of California petitioned for an order for entry but the courts ruled that the proposed geological investigations and environmental testing constituted a taking which compensation must be provided to the property owners. The court evaluated the environmental testing based on four criteria:

(1) Degree to which the invasion is intended;
(2) The character of the invasions;
(3) The amount of time the invasions will last;
(4) The invasions’ economic impact on the landowners and interference with their distinct investment-backed expectations.

All in all, the Appellate court held that pre-condemnation entry without just compensation may be unconstitutional. If upheld or allowed to stand, the decision will allow invasive testing on property only through an eminent domain action to allow testing or after the property is condemned. Given what is at stake, it would seem reasonable for the California Supreme Court to review the Appellate Court’s decision.

If the Supreme Court denies review or upholds the decision, this will create great obstacles for agencies to overcome; it may also have a negative impact for property owners. Property owners may see increases in the cost and the time it takes to defend against eminent domain actions instead of simply defending against entry before a decision is made to acquire the property. It must be noted that the decision does not preclude voluntary agreement between public agencies and property owners to allow the agency access to the owner’s property. However, there may be some additional procedural hurdles to seeking such agreements.

The court decision did leave a significant unanswered question as to where the line is to be drawn between an invasive entry and one which is not a significant invasion. The court did not offer any clear answer; it simply suggested that the Legislature can modify the right-of-entry statutes to insure the Constitutional rights of property owners.

If the Supreme Court does not grant review or efforts to depublish the Appellate decision fail, the next step will most likely take place in the Legislature. Stay tuned as this progresses.