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  • Nevada Irrigation District vs. Back, George H. et alcivil document preview
  • Nevada Irrigation District vs. Back, George H. et alcivil document preview
  • Nevada Irrigation District vs. Back, George H. et alcivil document preview
  • Nevada Irrigation District vs. Back, George H. et alcivil document preview
  • Nevada Irrigation District vs. Back, George H. et alcivil document preview
  • Nevada Irrigation District vs. Back, George H. et alcivil document preview
  • Nevada Irrigation District vs. Back, George H. et alcivil document preview
  • Nevada Irrigation District vs. Back, George H. et alcivil document preview
						
                                

Preview

ELECTRONICALLY FILED Superior Court of California, County of Placer DANIEL S. CUCCHI (SBN 287132) 9-17-20 dcucchi@aklandlaw.com By: Lisa M Perry, Deputy Clerk GLEN C. HANSEN (SBN 166923) ghansen@aklandlaw.com ABBOTT & KINDERMANN, INC. 2100 21st Street Sacramento, CA 95818 Telephone: (916) 456-9595 Facsimile: (916) 456-9599 Attorneys for Defendant THEODORE BACK, in his individual capacity and as Special Administrator of the Estates of George Back and Dorothy Back 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF PLACER 12 13 NEVADA IRRIGATION DISTRICT, CASE NO. S-CV-0040316 14 Plaintiff, DEFENDANT THEODORE BACK’S 15 Vv. TRIAL BRIEF 16 GEORGE H. BACK, GEORGE BACK, the heirs and devisees of GEORGE BACK, 17 deceased, and all persons claiming by, through Trial Date: September 28, 2020 or under said decent, DOROTHY BACK, the Time: 8:30 a.m. 18 heirs and devisees of DOROTHY BACK, Dept.: 42 or TBD deceased, and all persons claiming by, through 19 or under said decedent and THEODORE L. BACK; ALL PERSONS UNKNOWN Action Filed: December 22, 2017 20 CLAIMING AN INTEREST IN THE PROPERTY, including DOES 1-50, inclusive, 21 Defendants. 22 23 24 This is a special proceeding of a civil nature prosecuted under the Eminent Domain Law, 25 Part 3, Division 7 of the California Code of Civil Procedure, commencing at section 1230.010. 26 // 27 // 28 // -l- DEFENDANT THEODORE BACK’S TRIAL BRIEF PARTIES Plaintiff Nevada Irrigation District (“NID”) is a public agency operating under the California Irrigation District Law, Division 11 of the California Water Code, commencing at section 20500. Defendants include the heirs and devisees of George Back, deceased, and the heirs and devisees of Dorothy Back, deceased. In or about September 2019, Defendant Theodore Back was appointed special administrator of the Estates of George and Dorothy Back. Mr. Back is the son of George Back and Dorothy Back and has a legal interest in the property identified in this Eminent Domain action. Mr. Back is a defendant in this case in both his individual capacity and 10 as the special administrator of the Estates of George Back and Dorothy Back. Ruth Graupmann is 11 the daughter of George Back and Dorothy Back. Ms. Graupmann has been named and served by 12 Plaintiff as a Defendant in her individual capacity. 13 ATTORNEYS 14 Defendant Theodore Back (“Back’’), in both his individual capacity and as the special 15 administrator of the Estates of George Back and Dorothy Back, is represented by Abbott & 16 Kindermann, Inc. and Daniel S. Cucchi and Glen C. Hansen. Defendant Ruth Graupmann has 17 appeared and represents herself. NID is represented by Minasian, Meith, Soares, Sexton & 18 Cooper, LLP and M. Anthony Soares. 19 PROPERTY SOUGHT TO BE ACQUIRED 20 NID seeks to acquire an easement for a haul road and access purposes across lands owned 21 by the Estates of George Back and Dorothy Back located south of the Bear River in Placer 22 County, California. The easement, if acquired, would include a 60-foot wide strip of land, with 23 the incidental rights to grade and pave the entire width of the strip, as well as incidental rights to 24 improve and maintain drainage, slope maintenance, vegetation removal and install safety 25 measures. There is an existing road located within the proposed 60-foot wide strip of varying 26 widths that was constructed by Plaintiff in or about 1963 with the permission of George Back. 27 NID’s stated uses for the road are: (1) access to its Chicago Park Powerhouse and water 28 conveyance facilities for maintenance and operations; and (2) access to Rollins Reservoir and the -2- DEFENDANT THEODORE BACK’S TRIAL BRIEF surrounding area to remove and transport gravel and sediment that is encroaching upon the water storage capacity of the reservoir. Both uses began when the road was constructed in 1963 and continued for several decades. The Chicago Park Powerhouse use is ongoing, while the gravel and sediment operations ceased in the late 1990s. LIMITATIONS ON AN AGENCY’S AUTHORITY TO CONDEMN While the power of eminent domain is inherent to sovereignty, it is limited by both the U.S. Constitution and the California Constitution, as well as by statute. Property may only be taken or damaged for a public use. (U.S. Const., Amends. V and XIV; Cal. Const., art. I, §14.) When property is taken, just compensation must be awarded. (/d.) 10 To exercise the power of eminent domain, California law establishes certain findings that 11 must be made and procedures that must be followed. First, a finding of public necessity must be 12 made, which establish: 13 (i) the public interest and necessity require the project; 14 (au) the project is planned or located in the manner that will be most compatible with the greatest public good and the least private 15 injury; and iil the property sought to be acquired is necessary for the project. 16 [Code Civ. Proc. §1240.030.] 17 Second, the agency must hold a hearing to consider whether these findings can be made. (Code 18 Civ. Proc. §1245.235.) Notice of that hearing and an opportunity to be heard at that hearing must 19 be provided to the property owner. (/d.) If the agency determines the findings can be made to 20 support the taking and in order to file a condemnation action, the agency must adopt a resolution 21 of necessity. (Code Civ. Proc. §§1240.040; 1245.220.) 22 California law also prescribes limits on a local public entity’s use of the power of eminent 23 domain outside their jurisdictional boundaries, as follows: 24 A local public entity may acquire by eminent domain only property within its territorial limits except where the power to acquire by eminent domain 25 property outside its limits is expressly granted by statute or necessarily implied as an incident of one of its other statutory powers. [Code Civ. 26 Proc. §1240.050.] 27 California law also provides that local public entities may take extraterritorial eminent 28 domain actions only for certain specified purposes, as follows: -3- DEFENDANT THEODORE BACK’S TRIAL BRIEF Except as otherwise expressly provided by statute and subject to any limitations imposed by statute, a local public entity may acquire property by eminent domain outside its territorial limits for water, gas, or electric supply purposes or for airports, drainage or sewer purposes if it is authorized to acquire property by eminent domain for the purposes for which the property is to be acquired. [Code Civ. Proc. §1240.125.] Extraterritorial takings by local public entities for implied purposes are also subject to additional scrutiny, requiring an agency to demonstrate it has met a much higher standard of “legal necessity.” (Kenneth Mebane Ranches v. Superior Court (1992) 10 Cal.App.4th 276, 289.) Whether an agency has pled sufficient facts to support this standard is a question of law and is jurisdictional. (Harden v. Superior Court (1955) 44 Cal.2d 630, 637-38.) 10 ISUES FOR TRIAL 11 Mr. Back, in both his individual capacity and as the special administrator of the Estates of 12 George Back and Dorothy Back, has raised objections to NID’s “right to take,” as has Ms. 13 Graupmann. These objections, which must be heard and determined prior to the determination of 14 issues of compensation (Code Civ. Proc. §1260.110), have been set for trial on September 28, 15 2020. 16 A CONTRARY TO NID’S POSITION, MR. BACK HAS NOT WAIVED HIS OBJECTIONS. 17 18 The trial brief filed by NID on January 21, 2020, relies on People ex. rel. Dep’t of 19 Transportation v. Cole (1992) 7 Cal.App.4th 1281, 1284-86, to argue that Mr. Back has waived 20 the right to object to the Resolution of Necessity adopted by the NID’s Board of Directors at a 21 hearing held on July 12, 2017. NID’s waiver argument is based solely on NID’s assertion that it 22 mailed the notice under Code of Civil Procedure section 1245.235, to a post office box controlled 23 by Mr. Back. That argument is unavailing for the following two reasons. 24 First, unlike in Cole where the defendants failed to appear at the hearing to make their 25 objections even though they acknowledge receiving the notice, Mr. Back will testify that he did 26 not actually receive NID’s notice until after the hearing had already been held by NID, and after 27 the Resolution of Necessity was adopted by NID. At trial, Mr. Back will provide the notice that 28 -4- DEFENDANT THEODORE BACK’S TRIAL BRIEF he eventually received from NID after the statutorily-required hearing had already taken place. Therefore, the waiver discussed in Cole does not apply under the facts in this case. Because Mr. Back did not actually receive the statutorily required notice prior to the hearing, Mr. Back should not be saddled with the deprivation of his statutory and constitutionally- based rights of the opportunity to be heard and raise objections to the governmental taking of one’s own private property. Such a conclusion would be at odds with the fundamental principles embodied in the Fifth Amendment to the U.S. Constitution, as well as the notice and hearing requirements required in Code of Civil Procedure section 1245.235. Second, Section 1245.235 expressly limits its procedures, and the consequences that flow 10 from those procedures as stated in Cole, to “the matters referred to in Section 1240.030.” Thus, 11 even if this Court was inclined to impose the waiver on Mr. Back pursuant to Section 1245.235, 12 any waiver would not apply to Mr. Back’s objections arising out of Sections 1240.050 or 13 1240.125. 14 For these reasons, NID’s request to find that Mr. Back has waived his right to raise 15 objections should be rejected. Mr. Back should retain the right to raise objections at trial. 16 B NID’S CANNOT ESTABLISH THE RIGHT TO TAKE THE EASEMENT 17 IN THIS CASE. 18 Mr. Back will raise the following objections to NID’s “right to take” at trial. 19 1 NID Has Failed To Demonstrate That The Proposed Taking Is 20 Legally Necessary . 21 When a local public entity seeks to take private property for an asserted “necessarily 22 implied” purpose, the public entity cannot rely on the same reasonable or practical necessity 23 standard used to meet the “public convenience and necessity” and “necessary” findings under 24 Section 1240.030, subdivisions (a) and (c), respectively. Instead, the public entity must 25 demonstrate that the project meets a much higher “legal necessity” standard which requires a 26 showing of “urgency, or extreme expediency, or legal necessity, or that the proposed taking is 27 indispensable.” (City of Carlsbad v. Wright (1963) 221 Cal.App.2d 756, 764.) “[E]vidence that 28 the taking of the land sought to be condemned ‘would be a great convenience’ to the plaintiff, -5- DEFENDANT THEODORE BACK’S TRIAL BRIEF 1 “would enhance the value of its property, and would result in economy, established practical necessity, but was not sufficient proof to justify [legal necessity].” (/d. at 763.) The burden of alleging sufficient facts to meet this requirement falls to Plaintiff and is jurisdictional. (Harden v. Superior Court (1955) 44 Cal.2d 630, 637-38.) In Kenneth Mebane Ranches v. Superior Court (1992) 10 Cal.App.4th 276 (“Kenneth Mebane’’), the Fifth District Court of Appeal considered whether a local flood control district could condemn extraterritorial property for the implied purpose of environmental mitigation which the district argued it was obligated to do under the California Environmental Quality Act (“CEQA”) for a project constructed within its territory. Applying the higher “legal necessity” 10 standard, the appellate court held that the district did not meet its burden, because it was not 11 required to acquire the extraterritorial property “in order to mitigate the environmental effects of 12 its flood control project.” (/d. at 291.) It reasoned that CEQA only requires agencies to implement 13 “feasible mitigation” and, thus, if taking extraterritorial property for environmental mitigation 14 was beyond its authority, then the mitigation would not actually be feasible and the project could 15 proceed without the mitigation. (/d. at 292.) 16 In this case, NID cannot meet its burden of proving that higher “legal necessity” standard. 17 NID is seeking to take extraterritorial private property for the implied purposes of access to NID 18 facilities and a sediment and gravel haul road. Just as in Kenneth Mebane, NID has the burden of 19 demonstrating that such a taking is “legally necessary” or otherwise “required” to take private 20 property for the purpose of accessing NID facilities at that location. With this Trial Brief, Mr. 21 Back is submitting Requests for Judicial Notice (as Exhibits 1 and 2) that establish that NID 22 could access the same NID facilities without the requirement to take any private property. In 23 short, NID cannot meet its burden of proving the requisite necessity for a taking here. 24 2 NID’s Proposed Taking Is Not Most Compatible With The 25 Greatest Public Good And The Least Private Injury. 26 Code of Civil Procedure section 1240.030, subdivision (b), requires the condemning 27 agency to make a finding in its Resolution of Necessity that “[t]he project is planned or located in 28 -6- DEFENDANT THEODORE BACK’S TRIAL BRIEF 1 the manner that will be most compatible with the greatest public good and the least private injury.” The Court of Appeal has described that requirement as follows: Proper location is based on two factors: public good and private injury. Accordingly, the condemnor’s choice is correct or proper unless another site would involve an equal or greater public good and a lesser private injury. A lesser public good can never be counter-balanced by a lesser private injury to equal a more proper location. Nor can equal public good and equal private injury combine to make the condemnor’s choice an improper location. [SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 470 (citations omitted).] NID cannot satisfy that requirement in this case. NID found that the present taking is for “road purposes” that will allow for access to Plaintiff's lands, facilities and improvements, including hauling “equipment, materials, debris, 10 sediment, aggregate, and deposits.” (NID Resolution No. 2017-20, Finding 11.) Thus, the greatest 11 public good provided by the proposed taking of Defendants’ property is to provide an access road 12 to NID’s lands, facilities and improvements, while NID concludes that taking Defendants’ 13 property constitutes the least private injury to achieve that public good. Not so. As discussed 14 above, Mr. Back will present evidence at trial that NID could have sought an alternative route that 15 would also provide an access road to the same location on NID’s property as the proposed taking, 16 while avoiding the need to impose private injury on Defendants or anyone else. 17 18 3 NID Abused Its Discretion By Seeking To Take More Expansive Easement Rights Than It Intends To Put Towards 19 The Public Use. 20 Under Code of Civil Procedure section 1250.360, subdivision (c), an agency does not 21 have the “right to take” where “the plaintiff does not intend to devote the property described in 22 the complaint to the stated purpose.” That objection lies in this case. Here, NID is seeking a 23 permanent 60-foot wide easement across Defendants’ property “for road purposes” to access 24 NID’s land, facilities and improvements, including hauling “equipment, materials, debris, 25 sediment, aggregate, and deposits,” and public access for recreational use. (NID Resolution No. 26 2017-20, Finding 11.) However, the evidence at trial will demonstrate that NID has already been 27 using the existing road across Defendants’ property to access NID’s land, facilities and 28 -7- DEFENDANT THEODORE BACK’S TRIAL BRIEF improvements under a private agreement since 1963 to today, including for hauling sediment, aggregates and deposits through the late 1990s. Instead of seeking a permanent easement consistent with the existing roadway which has been adequate for NID for the last several decades, NID now seeks an easement that includes the right to “pave the surface of the entire easement.” The breadth of NID’s requested easement is an abuse of discretion because NID’s own publicly available documentation demonstrates that the scope of the easement is unnecessary to achieve NID’s stated purpose. Mr. Back will present evidence at trial that NID has publicly stated that only minor safety improvements are needed to achieve the desired purpose underpinning this eminent domain action. 10 Cc EVIDENCE AND BURDEN OF PROOF. 11 Mr. Back intends to offer as evidence the following exhibits: 12 1 County of Nevada, “County Maintained Mileage and CSA/PRD Road Listings 13 2/21/2019,” found at 14 https://www.mynevadacounty.com/DocumentCenter/View/15897/County- 15 Maintained-Road-List-PDF?bidId= (last visited Sept. 16, 2020); 16 2. 43 Code of Federal Regulations, Part 2800 et seq. [“RIGHTS-OF-WAY UNDER 17 THE FEDERAL LAND POLICY AND MANAGEMENT ACT”); 18 Excerpts from the “Final Environmental Impact Report for the Bear River 19 Sediment Removal at Rollins Reservoir,” dated November 2015; 20 Notice of Hearing for the Resolution of Necessity, which was received by Mr. 21 Back after the date of the hearing that was held on July 12, 2017. 22 Copies of these exhibits will be produced at trial. 23 Code of Civil Procedure section 1245.250, subdivision (c), provides that upon NID’s 24 adoption of the Resolution of Necessity the findings required under Section 1240.030 are 25 presumed to be true. This rebuttable presumption shifts the burden of proof to Defendants to 26 produce evidence sufficient to show that one or more of these findings are not true. As discussed 27 above, NID is seeking to condemn extraterritorial property for an implied use, and therefore NID 28 has an additional burden to demonstrate that the findings in the Resolution of Necessity or in its -8- DEFENDANT THEODORE BACK’S TRIAL BRIEF Complaint allege facts sufficient to demonstrate the “legal necessity” required for the use of an implied power to take extraterritorial property through eminent domain. Only then would NID receive the evidentiary presumption provided in Section 1245.250, subdivision (c). However, as also discussed above, NID cannot meet that evidentiary burden. CONCLUSION Mr. Back respectfully requests that this Court (1) find that Mr. Back may present at trial his objections to NID’s “right to take”; and (2) find that NID does not have the right to acquire by eminent domain the property described in the Complaint. Respectfully submitted, 10 DATED: September 16, 2020 ABBOTT & KINDERMANN, INC. 11 7 By: 12 Dani . Cucchi Glen C. Hansen 13 Attorneys for Defendant THEODORE BACK, in his individual capacity and as 14 Special Administrator of the Estates of George Back and Dorothy Back 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- DEFENDANT THEODORE BACK’S TRIAL BRIEF