Information about School District Eminent Domain Actions:

This describes the process that most school districts would have to go through to take real property through eminent domain.  We note some of the property owner's opportunities to raise objections. 

A School District's Right To Take Property

Government agencies, including School Districts, are authorized by the California Constitution and by statute to take private property for public use.  The only requirement is that just compensation first be paid to, or deposited with the court for, the owner.  (California Constitution, Art. 1, § 19.)

As a general rule, courts have made defeating a government entity's right to take private property extraordinarily difficult.  On the other hand, there are sometimes opportunities in the process to object to a proposed condemnation, and potentially to defeat it, particularly when the costs — political, economic, and legal — are high for the condemning agency.

With this in mind, we describe the major steps the School District must take and the opportunities that property owner may have to participate in and affect the process.

The County Committee on School District Organization

 Before some School Districts can start the process to condemn the property, they must first obtain a recommendation from the Los Angeles County Committee on School District Organization.  It would be appropriate for the property owner to raise objections before this Committee to the proposed taking of its property.   

Usually, a local public entity may only condemn property within its boundaries.  Here, however, extra-territorial condemnation is permitted by express statutory authority that allows a school district to condemn certain property outside of its boundaries if the County Committee on School District Organization has first made a recommendation concerning the proposed condemnation.[1]  (Code Civ. Proc. § 1240.050; Education Code § 17217.)  The School District is not required to follow the County Committee 's recommendation, but if the property owner could successfully persuade the County Committee of its position, we anticipate that the School District would face some political pressure to reconsider in light of a negative determination from the County Committee .

School Board Public Hearing for Site Selection Standards

 The School District Board must also hold a public hearing to evaluate site selection standards.  At this hearing, the School Board is required to evaluate the property using the site selection standards established by the State Department of Education pursuant to Education Code § 17251(b).  Those standards are located in State Department of Education Regulations (see, e.g., Regulation § 14010), and include, for example, requirements about:  

·                     acreage and enrollment;  

·                     distance from:  

-                      power line easements;  

-                      railroad tracks;  

-                     roads or freeways that may present traffic hazards or sound levels that would disturb the educational process;  

-                      earthquake faults or fault traces;  

-                      areas of flood inundation;  

-                      above-ground water or fuel tank storage;  

-                      soil subject to liquefaction or landslide; and  

-                      major arterial streets with heavy traffic;  

·                     zoning of surrounding properties to avoid a potential health or safety risk to the students or staff; and

·                     consideration of the costs of eminent domain, including the expense of paying just compensation for the land condemned, severance damages for neighboring land not condemned but injured by the condemnation, and legal fees. 

 If the School District has established an Advisory Committee pursuant to Education Code § 17388, it can direct the Advisory Committee to evaluate the property according to the site selection standards and to report its finding to the School Board at the public hearing. 

 It is possible the Resolution of Necessity (discussed below) and site selection hearings would be held simultaneously.  If not, the site selection hearing is another opportunity for the property owner to forcefully present the harm that taking this site would engender. 

State Department of Education Recommendations

 If the School District is a "non-self-certified district," it is required to obtain written approval from the State Department of Education, which involves an intricate series of procedures for site selection and requires a public hearing to assure compliance with the State's School Site Selection Standards, discussed above.  (Department of Education Regulations § 14011.) 

 However, if the School District is self-certified, and if it requests, the State Department of Education will advise it on the acquisition of new school sites and, after reviewing available locations, give it a written list of recommended locations in the order of their merit, considering especially the factors of educational merit, safety, traffic hazards, and conformity to the land use element in the local general plans.  The School District need not request the State's advice and may, in fact, ignore it.  (Education Code § 17251(a).)

 The State Department of Education can also become involved if someone (such as the property owner) makes a formal complaint that the proposed school site does not conform to the State Site Selection Standards.  (Education Code § 17251(b).)  If there is a complaint, the Department of Education must conduct an investigation into the suitability of the proposed school site and notify the School District 's Board of the results of the investigation.  Then the Board must discuss the findings of the investigation at a public hearing.  (Education Code § 17251(b).)

 By any of these three avenues, the State Department of Education can become another potential candidate to convince the School District that taking the property owner's property would be inappropriate.

California Environmental Quality Act (CEQA) Compliance:  EIR

 The project to build a new school almost certainly would require the School District prepare an Environmental Impact Report (EIR) under CEQA.  (Pub. Resources Code §§ 21002, et seq., 21151.2.)

 The CEQA process requires circulation of a draft EIR to interested public entities and to the surrounding neighborhood.  The EIR circulation and comment process is another time to raise and air issues which could derail the School District 's plan.

 Also, early in the CEQA process — months before a draft EIR is circulated — the School District must give you notice identifying the whole gamut of public hearings and agency reviews that its plan will be subjected to under CEQA.  That notice will give the property owner another list of potential opportunities to deflect a taking of your property. 

CEQA Compliance:  Review by the Planning Commission

 CEQA also imposes a special consultation requirement on the School Board.  The School District may not acquire the property for a new school site without giving written notice to the Los Angeles City Planning Commission.  The Planning Commission must investigate the site and report back to the School District Board within 30 days.  The School District may not purchase the site until the report has been received.  If the Planning Commission report does not favor the acquisition of the site, the School District must wait 30 days after receiving the report before acquiring the site.  (Pub. Res. Code § 21151.2.) 

City of Los Angeles Planning Process

Development of a school site with the City of Los Angeles would require approval from the Planning Department of the City of Los Angeles .  A zone change may be needed, requiring a public hearing before the Los Angeles City Council. 

The Condemnation Process

 Precondemnation Offer

 Before the School District can begin condemnation proceedings, it must first make an offer of "just compensation" for the proposed taking of the property.  This offer must be based on an independent appraisal.  (Gov't Code § 7267.2.)  Although the offer is nominally at a fair market value, the usual government agency practice is to present an appraisal that is too low.  

 The opportunity exists at this early stage to dissuade the School District by demonstrating that the damage to the property owner's existing facilities would be so great that the cost to acquire the property for a school would be prohibitive. 

 Public Hearing and Resolution of Necessity

 Presuming the property owner rejects the initial offer, the School District 's next step is to hold a public hearing.  After hearing testimony, the School District must adopt a formal Resolution of Necessity.  (Code Civ. Proc. §§ 1240.040, 1245.220, 1245.250.)  The School District must give the property owner written notice of the hearing.  If the property owner wants to appear and be heard at the hearing, it must make a written request within 15 days of the date the School District mails the notice. 

 At the hearing, the School District must establish the following three elements before it can take further action to condemn the property owner's property: 

 ·                     the public interest and necessity require a school;

·                     the school is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; and

·                     the property owner property sought to be acquired is necessary for the project.  (Code Civ. Proc. § 1240.030.) 

Although these elements are often pro forma, this is another opportunity to attempt to dissuade the School District because it might show that (1) an alternative school site is available, and (2) condemning the property owner site would not be consistent with the greatest public good and the least private injury.  

 The Resolution of Necessity must be adopted by a vote of two-thirds of all members of the School Board — not just the majority of the members present (Code Civ. Proc. § 1245.240); therefore, the property owner and its emissaries have an opportunity to defeat the resolution by convincing a minority of members that it would be a mistake to approve the school site at the property owner facility. 

 The Resolution of Necessity establishes only a rebuttable presumption of necessity if, as here, the site targeted for acquisition is outside the territorial limits of the public entity.  (Code Civ. Proc. § 1245.0250(c).)

 If the property owner can show that at the time of the hearing the School District had already irrevocably committed itself to taking this property, regardless of the evidence to be presented, the property owner could later reverse a judgment of condemnation.  (Redevelopment Agency v. Norm's Slauson, 173 Cal. App. 3d 1121 [1985].)[4] 

 It is important that the property owner attend the Resolution of Necessity public hearing to raise all conceivable objections so that they are not later deemed waived. 

If a Resolution of Necessity is passed, the property owner may obtain judicial review of the Resolution's validity by petition for a writ of mandate before the School District files a condemnation lawsuit.  (Code Civ. Proc. § 1245.255(a)(1).)  And after the School District files suit, the property owner may still object to the right to condemn.  (Code Civ. Proc. § 1245.255(b)(2).)

Deposit of Probable Compensation

 As noted above, the School District must obtain an independent appraisal to determine the probable amount of compensation that will be paid to the property owner for its property.  The School District must deposit this amount of probable compensation into court before judgment is entered.  (Code Civ. Proc. § 1255.010.)  the property owner is permitted to withdraw that sum at any time.  However, if the property owner withdraws the deposit, it would waive its right to object to the School District 's right to condemn the property.  (Code Civ. Proc. § 1255.260.)  

Commencing Eminent Domain Proceedings

 Within six months after adopting the Resolution of Necessity, the School District must file a complaint in eminent domain with the Los Angeles County Superior Court and record a Notice of Lis Pendens with the County Recorder .  (Code Civ. Proc. § 1250.150.)  The property owner will have 30 days to respond to the Complaint.  In its Answer (or Demurrer), the property owner must object to the School District 's right to condemn the property.  (Code Civ. Proc. §§ 1245.260, 1250.350.)

Pre-judgment Possession of the Property

 After the School District files its complaint and deposits the probable compensation, it may ask the court to award it immediate possession of the property.  The Order of Possession becomes effective after service of the Order (usually 30 days after service for vacant property and 90 days after service for residential, farming, or business property.)  (Code Civ. Proc. § 1255.450(b).)  If the property owner objects to the School District 's right to condemn, and the court finds that the property owner has a reasonable probability of success, the Order of Possession is stayed until the court rules on the objections.  (Code Civ. Proc. § 1255.430.) 

The deposit and request for the Order of Possession is often done at the same time the complaint is filed, so the property owner will have to act fast if this happens.

Discovery and Trial

 Discovery and trial preparation is, in most respects, similar to ordinary cases, but there are some procedural differences.  Most importantly for the property owner, eminent domain proceedings are granted a trial priority so that they may be quickly heard.  (Code Civ. Proc. § 1260.010.)  A special trial may be held on the right to take issue.  (Code Civ. Proc. § 1260.010.)  Other differences include the fact that the School District would be the plaintiff, but it would be treated procedurally as if it were the defendant at trial (for example, instead of the usual rule that a plaintiff argues first, the defendant — the property owner — would argue first.)  All decisions, except the amount of compensation to be awarded — if the right to take challenge fails — will be made by a judge rather than a jury.  (Code Civ. Proc. § 1260.120(a).)

Summary of Opportunities To Object to Condemnation

 In summary, we currently envision the property owner has the following opportunities to persuade policymakers that the property should not be condemned for use as a school:

 ·                     negotiations and personal discussions with School District officials and School Board members;

 ·                     a public hearing before the School District Board on the Resolution of Necessity;  

·                     a public hearing before the School District Board on compliance with State School Site Selection Criteria;  

·                     review by the Los Angeles County Committee on School District Organization;

·                     review by the School District Board's Advisory Committee, if one has been established;  

·                     hearing before the State Department of Education;  

·                     circulation of draft EIR and public hearings on the School Board's certification of a Final EIR;  

·                     hearings before the Los Angeles City Planning Commission; and  

·                     hearings in the Los Angeles Superior Court during condemnation litigation.

 Please contact us if you would like to discuss any of these matters further.