Published: 2015-07-08
Key Benefits:
Any person authorized to acquire property for a particular use by eminent domain may exercise the power of eminent domain to acquire for that use property appropriated to public use if the use for which the property is sought to be taken is a more necessary public use than the use to which the property is appropriated. Where property is sought to be acquired pursuant to this section, the complaint, and the resolution of necessity if one is required, shall refer specifically to this section.
(Added by Stats. 1975, Ch. 1275.)
If the defendant objects to a taking under Section 1240.610, the defendant has the burden of proof that his property is appropriated to public use. If it is established that the property is appropriated to public use, the plaintiff has the burden of proof that its use satisfies the requirements of Section 1240.610.
(Added by Stats. 1975, Ch. 1275.)
(a) Where property is sought to be taken under Section 1240.610, the defendant is entitled to continue the public use to which the property is appropriated if the continuance of such use will not unreasonably interfere with or impair, or require a significant alteration of, the more necessary public use as it is then planned or exists or may reasonably be expected to exist in the future.
(b) If the defendant objects to a taking under this article on the ground that he is entitled under subdivision (a) to continue the public use to which the property is appropriated, upon motion of either party, the court shall determine whether the defendant is entitled under subdivision (a) to continue the use to which the property is appropriated; and, if the court determines that the defendant is so entitled, the parties shall make an agreement determining the terms and conditions upon which the defendant may continue the public use to which the property is appropriated, the terms and conditions upon which the property is taken by the plaintiff is acquired, and the manner and extent of the use of the property by each of the parties. Except as otherwise provided by statute, if the parties are unable to agree, the court shall fix such terms and conditions and the manner and extent of the use of the property by each of the parties.
(Added by Stats. 1975, Ch. 1275.)
(a) Where property has been appropriated to public use by any person other than the state, the use thereof by the state for the same use or any other public use is presumed to be a more necessary use than the use to which such property has already been appropriated.
(b) Where property has been appropriated to public use by the state, the use thereof by the state is presumed to be a more necessary use than any use to which such property might be put by any other person.
(c) The presumptions established by this section are presumptions affecting the burden of proof.
(Added by Stats. 1975, Ch. 1275.)
(a) Where property has been appropriated to public use by any person other than a public entity, the use thereof by a public entity for the same use or any other public use is a more necessary use than the use to which such property has already been appropriated.
(b) Where property has been appropriated to public use by a public entity, the use thereof by the public entity is a more necessary use than any use to which such property might be put by any person other than a public entity.
(c) Where property which has been appropriated to a public use is electric, gas, or water public utility property which the public entity intends to put to the same use, the presumption of a more necessary use established by subdivision (a) is a rebuttable presumption affecting the burden of proof, unless the acquiring public entity is a sanitary district exercising the powers of a county water district pursuant to Section 6512.7 of the Health and Safety Code.
(Amended by Stats. 1992, Ch. 812, Sec. 2. Effective January 1, 1993.)
Where property has been appropriated to public use by a local public entity, the use thereof by the local public entity is presumed to be a more necessary use than any use to which such property might be put by any other local public entity. The presumption established by this section is a presumption affecting the burden of proof.
(Added by Stats. 1975, Ch. 1275.)
(a) Subject to Section 1240.690, notwithstanding any other provision of law, property is presumed to have been appropriated for the best and most necessary public use if all of the following are established:
(1) The property is owned by a nonprofit organization contributions to which are deductible for state and federal income tax purposes under the laws of this state and of the United States and having the primary purpose of preserving areas in their natural condition.
(2) The property is open to the public subject to reasonable restrictions and is appropriated, and used exclusively, for the preservation of native plants or native animals including, but not limited to, mammals, birds, and marine life, or biotic communities, or geological or geographical formations of scientific or educational interest.
(3) The property is irrevocably dedicated to such uses so that, upon liquidation, dissolution, or abandonment of or by the owner, such property will be distributed only to a fund, foundation, or corporation whose property is likewise irrevocably dedicated to such uses, or to a governmental agency holding land for such uses.
(b) The presumption established by this section is a presumption affecting the burden of proof.
(Added by Stats. 1975, Ch. 1275.)
(a) Subject to Sections 1240.690 and 1240.700, notwithstanding any other provision of law, property is presumed to have been appropriated for the best and most necessary public use if the property is appropriated to public use as any of the following:
(1) A state, regional, county, or city park, open space, or recreation area.
(2) A wildlife or waterfowl management area established by the Department of Fish and Game pursuant to Section 1525 of the Fish and Game Code.
(3) A historic site included in the National Register of Historic Places or state-registered landmarks.
(4) An ecological reserve as provided for in Article 4 (commencing with Section 1580) of Chapter 5 of Division 2 of the Fish and Game Code.
(b) The presumption established by this section is a presumption affecting the burden of proof.
(Added by Stats. 1975, Ch. 1275, Sec. 3.)
(a) When property described in Section 1240.670 or 1240.680 is sought to be acquired for state highway purposes, and the property was dedicated or devoted to a use described in those sections prior to the initiation of highway route location studies, an action for declaratory relief may be brought by the public entity or nonprofit organization owning the property in the superior court to determine the question of which public use is the best and most necessary public use for the property.
(b) The action for declaratory relief shall be filed and served within 120 days after the California Transportation Commission has published in a newspaper of general circulation pursuant to Section 6061 of the Government Code, and delivered to the public entity or nonprofit organization owning the property a written notice that a proposed route or an adopted route includes the property. In the case of nonprofit organizations, the written notice need only be given to nonprofit organizations that are on file with the Registrar of Charitable Trusts of this state.
(c) In the declaratory relief action, the resolution of the California Transportation Commission is not conclusive evidence of the matters set forth in Section 1240.030.
(d) With respect to property described in Section 1240.670 or 1240.680 which is sought to be acquired for state highway purposes:
(1) If an action for declaratory relief is not filed and served within the 120-day period established by subdivision (b), the right to bring the action is waived and Sections 1240.670 and 1240.680 do not apply.
(2) When a declaratory relief action may not be brought pursuant to this section, Sections 1240.670 and 1240.680 do not apply.
(Amended by Stats. 1982, Ch. 681, Sec. 2.)
(a) When property described in Section 1240.680 is sought to be acquired for city or county road, street, or highway purposes, and such property was dedicated or devoted to regional park, recreational, or open-space purposes prior to the initiation of road, street, or highway route location studies, an action for declaratory relief may be brought in the superior court by the regional park district which operates the park, recreational, or open-space area to determine the question of which public use is the best and most necessary public use for such property.
(b) The action for declaratory relief shall be filed and served within 120 days after the city or county, as the case may be, has published in a newspaper of general circulation pursuant to Section 6061 of the Government Code, and delivered to the regional park district, a written notice that a proposed route or site or an adopted route includes such property.
(c) With respect to property dedicated or devoted to regionl park, recreational, or open-space purposes which is sought to be acquired for city or county road, street, or highway purposes:
(1) If an action for declaratory relief is not filed and served within the 120-day period established by subdivision (b), the right to bring such action is waived and the provisions of Section 1240.680 do not apply.
(2) When a declaratory relief action may not be brought pursuant to this section, the provisions of Section 1240.680 do not apply.
(Added by Stats. 1975, Ch. 1275.)
