Real Estate & Property Law

Cal Ct App: "Substantially Impaired" Access Does Not Mean Reduced Access

By Robert Thomas (inversecondemnation.com)

We're still on the road so haven't had time to digest this eminent domain decision in more detail, but here's a short summary.

In an unpublished opinion in Council of San Benito County Governments v. McNamee, No. H033989 (Apr. 27, 2010, the California Court of Appeal (Sixth District) rejected the property owners' argument the trial court erroneously held they were not entitled to severance damages:

Defendants contend on appeal that the trial court erred in rejecting their claim that the taking of their property created a ?substantial impairment? of access to the remainder parcel. They claim that the trial court?s statement of decision "demonstrates its failure to analyze correctly the issues and evidence in this case" and "shows that the trial court failed to consider the facts of this case."

Slip op. at 4. The court noted that under Cal. Evid. Code § 402, the hearing on the issue was not reported and there is no record of the testimony presented to the court at the hearing. Thus, "every presumption in favor of the validity of the judgment and all facts consistent with its validity will be presumed to have existed." The appellate court can reverse "only if the trial court's statement of decision itself demonstrates that it committed reversible error." Id. at 5.

With that, the court reviewed the trial court's findings, and concluded it was fine:

The question before the trial court was whether access to the remainder parcel was substantially impaired, not whether the parcel?s original access had been reduced by the taking. Substantially impaired does not mean the same as reduced. The relevant meaning of ?substantial? is "essential." (Merriam-Webster?s Collegiate Dict. (10th ed. 1999) p. 1174.) "Impaired" has a qualitative import and means "handicapped or functionally defective," while "reduce" is merely quantitative and simply means "diminish in size." (Merriam-Webster?s Collegiate Dict. (10th ed. 1999) pp. 581, 980) Thus, even a taking that significantly reduces the access to a parcel may not result in a substantial impairment of the remainder parcel?s access if the remaining access is not functionally defective.

Slip op. at 7. That's about it for the opinion.

On further review, maybe we did have time to digest it.

Full post as published by inversecondemnation on April 28, 2010 (boomark / email).