San Diego Unified is trying to figure out if it wants to acquire through eminent domain some property that's adjacent to a school. So it wants to inspect it. Principally for environmental contamination. By contrast, the owners don't want to sell, and don't want the property taken either (even were they given just compensation), so they won't let the school district in. The school district gets a court order that allows 'em to inspect the place and take soil samples, etc.
Is that permissible?
The Court of Appeal says it is, and I'm inclined to agree with 'em. Though I have a question or two.
One question relates to the nature of the holding. The trial court granted a right of entry pursuant to Section 1245.010 of the CCP, and that's what the Court of Appeal affirms. But Justice O'Rourke's opinion repeatedly says that the entry is permissible because what San Diego Unified intends to do doesn't constitute a "taking" under the Constitution. See, e.g., Page 18 ("As we explain below, the District's activities do not amount to a taking.")
But I'm not sure that's what the Court of Appeal really means; or, if it does, that's really right.
What San Diego Unified plans to do definitely deprives the landowner of a portion of the bundle of sticks that is its rights in the property. Moreover, what the school district is planning to do is hardly a tiny little thing that has no meaningful effect whatsoever on that bundle. San Diego Unified says it'll be on the property conducting testing for around two full weeks, and here's what it plans to do:
"[C]oring 10 locations of
concrete using a two-inch diameter drill bit in concrete up to six inches thick; boring 33 holes within a 50-foot square grid partially outside of the building's footprint, 30 holes at
three feet deep and three at 20 feet deep; collecting soil samples from the borings;
collecting groundwater samples from the 20-foot borings; boring three 15-foot holes
adjacent to the 20-foot holes per Department of Toxic Substances Control requirements;
collecting two soil vapor samples; abandoning the borings by backfilling the three-foot
holes with clean sand to near the ground surface and resurfacing with concrete;
backfilling the 20-foot holes with bentonite grout to near the ground surface and
resurfacing with concrete; surveying and inspecting the building to identify homogeneous
areas, suspect materials and suspect surfaces; non-destructive X-ray fluorescence testing
to test surfaces suspected to contain lead; bulk sampling by a Division of Occupational
Safety and Health Certified Asbestos Consultant or Site Surveillance Technician of
postage-stamp-sized pieces of building materials suspected to contain asbestos; [etc.]"
Dude! Imagine that someone wanted to come onto your property and do that? Would you be just fine with that? Is that something that the government can really do with absolutely no constraint, at its whim, and without paying anything for its undeniably burdensome access to your land?
I think not. Yet if the Court of Appeal really means what it says -- that San Diego Unified's conduct doesn't amount to a "taking" at all -- then that's the consequence. Since if it's not a taking, then there is no duty of just compensation. You're utterly powerless whenever the government wants to come on your property for a couple of weeks and repeatedly drill 20-foot holes through concrete.
There's nonetheless substantial reason to think that that's not what Justice O'Rourke means to say. As San Diego Unified here was required to (and did) post $5000 to compensate the landowners for the value of the disruption to the property (and its tenant). The landowner (and tenant) said that wasn't enough, and that they were entitled to a jury trial on this issue, but the Court of Appeal disagreed.
I think it may well be that temporary takings of a sort may perhaps be insufficiently burdensome to justify the full panoply of rights normally provided in a classic eminent domain action; e.g., the right to a full trial and compensation decided by a jury. Including, in my view, in this case -- though I'll admit that I think the issue is a close one, since the burden here is definitely non-trivial. So I may well be on board for the more limited holding that the landowner here doesn't get to stop the testing before a full jury trial on the value of compensation.
But as for whether the access to its land is, in fact, a taking -- well, it surely is. At least in my view. Maybe a sufficiently temporary taking as to be permissible. But a taking nonetheless. And as such the landowner is entitled to just compensation. Maybe decided by a judge. Maybe pursuant to an abbreviated procedure, with a bond posted in advance being sufficient.
But the landowner's entitled to something. Because it's a taking. So when the Court of Appeal appears to say otherwise -- in words that are at least facially clear -- I'm not sure I agree.
One other point. The California Supreme Court will shortly decide a case that's darn similar to this one. Here's what the Court of Appeal says about it:
"In Property Reserve v. Superior Court (2014) 224 Cal.App.4th 828, review
granted June 25, 2014, No. S217738, involving the State of California's petition to enter
properties for environmental and geological studies so as to determine their suitability for
a proposed water tunnel, the California Supreme Court will address the following
questions: "(1) Do the geological testing activities proposed by the Department of Water
Resources constitute a taking? (2) Do the environmental testing activities set forth in the
February 22, 2011, entry order constitute a taking? (3) If so, do the precondemnation
entry statutes (Code Civ. Proc., §§ 1245.010-1245.060) provide a constitutionally valid
eminent domain proceeding for the taking?"
The briefing in that one's complete. I'd expect a decision by the California Supreme Court within the next six to eight months.
Given that reality, I wonder if the current opinion by the Court of Appeal is really worth all that much. Sure, it's important to vacate any stay, and get underlying stuff moving (e.g., the inspection) since we don't want progress further delayed by a fight in the courts.
But there's a fair chance that the California Supreme Court will send this matter back to the Court of Appeal in light of whatever it decides in Property Reserve next year. Given that fact, I wonder if it makes much sense to write a really long opinion (like the one here) rather than just a short one that resolves the matter (or merely dissolves any stay) and awaits the California Supreme Court. Which will undoubtedly have a ton to say about the matter.
Just a thought.
Justice O'Rourke's opinion is definitely worthwhile. And there's a lot to be said for it.
Though I might at least tighten up the language about whether what will transpire here constitutes an actual "taking". Because it seems to me that it does. At least a temporary one. For which the owner of the property is indeed entitled to just, albeit very limited, compensation.
(Oh, and I happen to know a little bit about the underlying property as well, since the tenant on that property operates a go-kart facility that my kids have occasionally been to for various birthday parties over the years. Trust me: San Diego Unified's boring in the parking lot will be a hassle. Not a huge one. Not justifying anywhere near the $500,000 that the landowner contends would be appropriate compensation. But a tiny bit of a hassle, that might in some small way deter someone at the margins from deciding to have a birthday party, or other activity, there. So the landowner/tenant should indeed get paid. Just not much.)