Hello dave888-ga,
A public entity such as, the transportation authority may purchase the
building from the owner at a price that is determined by the owner if
it can be agreed to by both parties just as in any other sale of a
property. However, if the owner and the government entity cannot
agree upon a price, or if the property owner refuses to sell, the
government entity can exercise its power of eminent domain to acquire
the property for public use.
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Per the Fifth Amendment of the US Constitution, private property shall
not be taken for public use, without just compensation.
Findlaw.com
National Eminent Domain Power
http://caselaw.lp.findlaw.com/data/constitution/amendment05/14.html
Findlaw.com
U.S. Constitution: Fifth Amendment
Fifth Amendment - Rights of Persons
http://caselaw.lp.findlaw.com/data/constitution/amendment05/index.html
Similarly, the California Constitution (Article 1, Sec. 19) states:
?Private property may be taken or damaged for public use only when
just compensation, ascertained by a jury unless waived, has first been
paid to, or into court for, the owner. The Legislature may provide
for possession by the condemnor following commencement of eminent
domain proceedings upon deposit in court and prompt release to the
owner of money determined by the court to be the probable amount of
just compensation.?
http://www.leginfo.ca.gov/.const/.article_1
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The California Eminent Domain Law can be found in the California Code
of Civil Procedure, Part 3, Title 7.
http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=ccp&codebody=&hits=20
General Provisions of the California Eminent Domain Law are discussed in CHAPTER 1.
?1230.010. This title shall be known and may be cited as the Eminent Domain Law.
1230.020. Except as otherwise specifically provided by statute, the
power of eminent domain may be exercised only as provided in this
title.
1230.030. Nothing in this title requires that the power of eminent
domain be exercised to acquire property necessary for public use.
Whether property necessary for public use is to be acquired by
purchase or other means or by eminent domain is a decision left to the
discretion of the person authorized to acquire the property.?
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=01001-02000&file=1230.010-1230.070
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Compensation is discussed in Chapter 9 of Title 7.
CHAPTER 9. COMPENSATION
Article 1. General Provisions 1263.010-1263.020
Article 2. Date of Valuation 1263.110-1263.150
Article 3. Compensation for Improvements 1263.205-1263.270
Article 4. Measure of Compensation for Property Taken 1263.310-1263.330
Article 5. Compensation for Injury to Remainder 1263.410-1263.450
Article 6. Compensation for Loss of Goodwill 1263.510-1263.530
Article 7. Miscellaneous Provisions 1263.610-1263.620
Article 8. Remediation of Hazardous Materials on Property to be
Acquired by School Districts
1263.710-1263.770
According to Article 4:
?Compensation shall be awarded for the property taken.
The measure of this compensation is the fair market value of the property taken.
1263.320. (a) The fair market value of the property taken is the
highest price on the date of valuation that would be agreed to by a
seller, being willing to sell but under no particular or urgent
necessity for so doing, nor obliged to sell, and a buyer, being ready,
willing, and able to buy but under no particular necessity for so
doing, each dealing with the other with full knowledge of all the uses
and purposes for which the property is reasonably adaptable and
available.?
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=01001-02000&file=1263.310-1263.330
Per Article 3, improvements must also be taken into account when
determining compensation:
?1263.205. (a) As used in this article, "improvements pertaining to
the realty" include any machinery or equipment installed for use on
property taken by eminent domain, or on the remainder if such property
is part of a larger parcel, that cannot be removed without a
substantial economic loss or without substantial damage to the
property on which it is installed, regardless of the method of
installation.
(b) In determining whether particular property can be removed
"without a substantial economic loss" within the meaning of this
section, the value of the property in place considered as a part of
the realty should be compared with its value if it were removed and
sold.
1263.210. (a) Except as otherwise provided by statute, all
improvements pertaining to the realty shall be taken into account in
determining compensation.
(b) Subdivision (a) applies notwithstanding the right or obligation
of a tenant, as against the owner of any other interest in real
property, to remove such improvement at the expiration of his term.?
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=01001-02000&file=1263.205-1263.270
The public entity is required to compensate owners of businesses on
the property for loss of goodwill, per Article 6:
?1263.510. (a) The owner of a business conducted on the property
taken, or on the remainder if such property is part of a larger
parcel, shall be compensated for loss of goodwill if the owner proves
all of the following:
(1) The loss is caused by the taking of the property or the injury to
the remainder.
(2) The loss cannot reasonably be prevented by a relocation of the
business or by taking steps and adopting procedures that a reasonably
prudent person would take and adopt in preserving the goodwill.
(3) Compensation for the loss will not be included in payments under
Section 7262 of the Government Code.
(4) Compensation for the loss will not be duplicated in the
compensation otherwise awarded to the owner.
(b) Within the meaning of this article, "goodwill" consists of the
benefits that accrue to a business as a result of its location,
reputation for dependability, skill or quality, and any other
circumstances resulting in probable retention of old or acquisition of
new patronage.
1263.520. The owner of a business who claims compensation under this
article shall make available to the court, and the court shall, upon
such terms and conditions as will preserve their confidentiality, make
available to the plaintiff, the state tax returns of the business for
audit for confidential use solely for the purpose of determining the
amount of compensation under this article. Nothing in this section
affects any right a party may otherwise have to discovery or to
require the production of documents, papers, books, and accounts.
1263.530. Nothing in this article is intended to deal with
compensation for inverse condemnation claims for temporary
interference with or interruption of business.?
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=01001-02000&file=1263.510-1263.530
I have not found any mention in the code of a requirement to relocate
a leaseholder?s business.
According to Article 7, a public entity may make an agreement to
relocate the structure if it will reduce the amount of compensation
payable to the owner.
?1263.610. A public entity and the owner of property to be acquired
for public use may make an agreement that the public entity will:
(a) Relocate for the owner any structure if such relocation is
likely to reduce the amount of compensation otherwise payable to the
owner by an amount equal to or greater than the cost of such
relocation.
(b) Carry out for the owner any work on property not taken,
including work on any structure, if the performance of the work is
likely to reduce the amount of compensation otherwise payable to the
owner by an amount equal to or greater than the cost of the work.?
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=01001-02000&file=1263.610-1263.620
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The following two websites provide good summaries of how ?Just
Compensation? is determined in Eminent Domain cases in California:
Real Estate Reporter
August 2003
How To Survive And Prosper In An Eminent Domain Action
By Barry MacNaughton
ERVIN, COHEN & JESSUP LLP
http://www.ecjlaw.com/publications/realestate/realestate-2003august.htm
?In practical terms, a property or business owner should seek
compensation for the value of (1) the real property itself; (2)
improvements pertaining to the real property; (3) business losses; and
(4) business goodwill. This compensation is available to the property
owner and to any other party whose property interest is acquired by
the government agency. For example, a business tenant on the property
is entitled to compensation for the value of his lease, the value of
fixtures and equipment, and the loss of business goodwill suffered as
a result of the acquisition.
These rights raise a cautionary and planning issue. Most properly
drafted leases contain a ?condemnation clause? which sets forth the
entitlement to compensation as between the owner and tenant in an
eminent domain proceeding. These clauses generally specify whether the
tenant is entitled to any ?leasehold bonus value,? i.e., the value of
the tenant?s leasehold interest. Courts have uniformly held that
condemnation clauses are enforceable. Even under these provisions, the
tenant is often entitled to his or her own fixtures, equipment and
business goodwill. Where there is no condemnation clause, the property
is generally valued as a whole and that value is divided up among the
owner and the tenants according to their respective interests in the
property. Many property owners do not realize that if the property is
rented at less than then prevailing market rates and the business
tenant has amassed significant goodwill, it is often the business
tenant who will receive the lion?s share of the just compensation, not
the underlying property owner.?
Oliver, Vose, Sandifer, Murphy & Lee
Just Compensation
http://www.eminentdomainlaw.net/compensation.html
?The items for which a property/business owner may generally attempt
to seek just compensation are (1) real property, (2) improvements
pertaining to realty (sometimes referred to as fixtures and
equipment), and (3) business goodwill. Just compensation for these
items is generally the "fair market value" of the item as of a
particular date. Each of these items is discussed in further detail in
the questions and answers which follow.
Under the California Constitution, property and business owners are
entitled to have just compensation determined by a jury.
---
The constitutional requirement of just compensation applies not just
to the record owner of the property, but to anyone whose property
interest is acquired by the government agency. For example, a business
tenant on property to be acquired by eminent domain may be entitled to
compensation for the value of his leasehold interest, the value of his
fixtures and equipment, and the loss of business goodwill suffered as
a result of the government agency's acquisition.
Many leases include a "condemnation clause" which spells out the
entitlement to compensation as between the owner and tenant. These
clauses generally specify whether the tenant is, or is not, entitled
to any "leasehold bonus value" -- that is, the value of the tenant's
leasehold interest. Courts have virtually uniformly held such
condemnation clauses to be enforceable. Even under these provisions,
however, the tenant is still often entitled to the value of his own
fixtures and equipment and business goodwill.?
===========================================================
I found a couple of documents at the Alameda County website that refer
to a recent Transportation Authority eminent domain case. Perhaps this
is the case that you are referring to.
Alameda County
BOARD OF SUPERVISORS? MEETING, TUESDAY, SEPTEMBER 9, 2003
http://www.acgov.org/board/bos_calendar/documents/add09_09_03.pdf
?Alameda County Transportation Authority ? Approve the setting of a
public hearing on Notice of Intention to Condemn Real Property and
adopt a resolution of necessity to authorize County Counsel to
commence and maintain eminent domain for the Alameda County
Transportation Authority sponsored improvement of the I-880/Mission
Boulevard Freeway Interchange Project in the City of Fremont for the
following Rights-of-Way:
A. Brown Trout Investments (R/W Nos. 57839-1 and 57839-2)
B. Cirrus Investments, L.P. (R/W/ Nos. 57844-1, 57844-3 and 57844-4)
C. Dropped D. Fremont Ventures LLC (R/W Nos. 57810-1, 57810-2, 57810-3 and 57810-4)
E. General Motors Corporation (R/W Nos. 57812-1 and 57812-2)
F. General Motors Corporation (R/W Nos. 57814-1 through 57814-8)
G. Hamcor Investment, LLC (R/W Nos. 57838-1 and 57838-3)
H. Heirs of Jacques Shers, etal. (R/W Nos. 57816-1, 57817-1 and 57818-1)
I. King & Lyons (R/W No. 57801-1) J. Metropolitan Life Insurance
Company (R/W No. 57828-1)
K. New United Motor Manufacturing, Inc. (R/W Nos. 57811-1 and 57811-2)
L. Pacific Gas and Electric Company (R/W Nos. 57847-1 through 57847-6)
M. Dropped
N. Renco Investment Company (R/W Nos. 57807-1, 57807-2, 57807-3 and 57807-4)
O. Renco Bayside Investors (R/W Nos. 57809-1, 57809-2, 57809-3 and 57809-4)
P. Union Bank of California, et al. (R/W No. 57827-
BOARD OF SUPERVISORS
Regular Meeting Tuesday, November 4, 2003
http://www.acgov.org/board/bos_calendar/documents/ag11_04_03.pdf
County Counsel ? Approve a contract with Meyers/Nave (Principal:
Michael R. Nave; Location: Oakland) for legal services during the
period 11/4/03 through the resolution of the proposed eminent domain
actions associated with the I-880/Mission Boulevard Freeway
Interchange project in Fremont, in an amount not exceed $300,000 ? CAO
Recommends: Approve
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Search Strategy:
I went to the State of California website ( http://www.ca.gov/ ). I
clicked on ?Government? in the menu on the left side of the page. I
then clicked on ?Constitutions, Laws and Regulations?.
I searched the ?California Constitution? and ?California's 29 Codes?
for ?just compensation? and ?eminent domain?.
I searched the Alameda County website ( http://www.co.alameda.ca.us/
)for ?eminent domain?.
I made the following searches using Google:
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alameda county california
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