What is the process if SANDAG needs to acquire property for the LOSSAN Rail Realignment Project?
Disclaimer: This information is not, nor is intended to be, legal advice, and is only intended to provide a general description the acquisition process. This information is not, and is not intended to be, an announcement of an intent to acquire any private property.
Planning and Environmental Review
SANDAG is planning the LOSSAN Realignment Project (“Project”) as part of a larger program of improvements on the LOSSAN Corridor. The Project is still in the early planning phase, and it is too early in the planning process to know what property interests might be required if the Project is environmentally cleared. SANDAG is engaging in early public outreach in connection with conceptual alignments, and is continuing to evaluate concepts that may be selected as project alternatives for analysis that will be studied during the formal environmental review process under the California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA).
The formal environmental review process will commence with the publication of a Notice of Preparation (NOP) of a Draft Environmental Impact Report (EIR). Following the NOP, SANDAG will continue to seek public comment on the alternatives proposed for analysis in the Draft EIR. During environmental review, SANDAG will consider property impacts associated with each of the project alternatives evaluated. SANDAG will attempt to minimize impacts to private properties and right of way acquisitions in developing alternatives. Thus, when a property interest is identified in a draft environmental or other planning document, it does not necessarily mean that SANDAG will need to acquire that property or property interest.
The acquisition process would not typically begin until after environmental clearance and further design, when the project location is determined, and the required property interests are confirmed.
The real property interests that SANDAG might need to acquire for the Project could be permanent or temporary, could consist of an entire property or a portion of the property, and could involve surface, subsurface, and/or aerial rights. For the construction and operation of trains in a tunnel, subsurface tunnel easements could be required. Subsurface tunnel easements typically do not require owners and occupants to relocate from the property, but the same procedural requirements apply for the acquisition of subsurface easements as for any other property interest.
Property owners’ rights are protected by the federal and State Constitutions, applicable State and federal laws and regulations, and SANDAG’s Board Policies. SANDAG’s Board Policy No. 21 contains information regarding the acquisition of property interests. Under that policy, all property owners must be dealt with fairly and equitably in the acquisition of lands or interests therein required by SANDAG.
Notice of Decision to Appraise
If it is determined that a specific property or property interests may be required for the Project, SANDAG would hire an independent licensed appraiser to determine the just compensation for the property interest. This means that property owners should receive the fair market value, as defined under California law, for the property or property interest. If SANDAG needs only a portion of a property, SANDAG would also be required to pay severance damages if the Project causes a decrease in value to the remainder of the property.
The property owner would receive a notice of the decision to appraise the property and would be provided with an opportunity to accompany the independent appraiser during the property inspection.
Offer of Just Compensation and Negotiation Period
After establishing just compensation based on the appraised value, SANDAG would then present an offer to the property owner based on the full appraised value. If the property owner desires to hire an appraiser, SANDAG would reimburse the owner for reasonable appraisal costs, up to $5,000. During the “negotiation period”, SANDAG would continue to discuss potential ways to mitigate or minimize impacts to property owners. If SANDAG and the property owner agree on the purchase price and other terms and conditions, the parties may enter into a purchase and sale agreement.
In addition to the offer of just compensation, businesses may be eligible for damages for loss of goodwill if the claims are compensable under state law. Eligible property owners and tenants who are required to relocate as a result of an acquisition may also be entitled to relocation benefits under state and federal relocation laws and regulations. This information would typically be provided along with the offer of just compensation.
Hearing on a Resolution of Necessity
State law authorizes SANDAG to acquire private property through eminent domain where the SANDAG Board of Directors (“Board”) adopts a Resolution of Necessity, and finds that the property is required for the Project, the public interest and necessity require the Project, and the Project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury. SANDAG seeks to first enter into voluntary purchase agreements with property owners and strives to resolve an owner’s concerns to the extent that is reasonably feasible before moving forward with a hearing on a Resolution of Necessity. A hearing on a Resolution of Necessity is a public hearing, and the property owner has a right to appear and be heard. The Board has the ultimate discretion to determine whether to adopt a Resolution of Necessity, after consideration of the evidence presented at the hearing. The issue of compensation is not part of the hearing.
Eminent Domain Action
If the Board adopts a Resolution of Necessity, SANDAG continues to try to resolve the proposed acquisition with the property owner during the eminent domain process. If the parties cannot agree to terms on the acquisition, a jury would typically determine the just compensation.