Judge Daniel M. Crowley, Case Number: 22STCV37974, Date: 2024-10-12 Tentative Ruling

Defendant City of Burbank’s motion permitting the continued public use of the Subject Property for street and sewer purposes until an actual project requiring imminent relocation of the City’s improvements in the Subject Property is identified, at which point the fair market value of the City’s easement interest and the cost of relocation of the City’s facilities will be paid to the City as part of that project, is granted.

Defendant City of Burbank (“City”) (“Moving Defendant”) moves for an order ruling that it is entitled to continue the public use to which the property sought to be taken is appropriated by Plaintiff The People of the State of California by and through the Department of Transportation (“Caltrans”) (“Plaintiff”). (Notice Motion, pgs. 1-2; C.C.P. §1240.630(b).)

In 2019, Plaintiff filed its first condemnation action, The People of the State of California v. ZRP Burbank, LLC, LASC Case No. BC701431, to acquire the same easement identified as Parcel 80284-1. The Court dismissed the matter without prejudice at a continued Order to Show Cause re: Settlement. Plaintiff and the City were unable to finalize the terms of the tentative settlement.

Plaintiff filed the instant complaint in eminent domain on December 5, 2022. The instant motion concerns Parcel 80284-1 (“Property”). (Complaint ¶8.) Defendant ZRP Burbank, LLC (“ZRP”) is the fee owner, Defendant City is an easement holder, and Defendant County of Los Angeles Tax Collector holds a tax lien over the Property. (See Complaint ¶6.)

City filed the instant motion on August 16, 2024. Plaintiff filed its opposition on September 30, 2024. City filed its reply on October 4, 2024.

A condemnor may exercise the power to acquire property already 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 already appropriated. (C.C.P. §1240.610.)

(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 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.

In such a controversy, the condemnor has the burden of proof to show that the proposed use is both inconsistent with and more necessary than the existing one. (City of Los Angeles v. Los Angeles Pacific Co. (1916) 31 Cal.App. 100, 115.)

Here, City currently uses the Subject Property for extra traffic lanes and capacity on Victory Place and for a sewer line. (Decl. of Sozio, Exh. J at ¶4.) Narrowing the street to accommodate the physical 90-foot right of-way will exacerbate an already-existing traffic congestion issue on Victory Place as a result of both the construction and the reduced street capacity. (Decl. of Sozio, Exh. J at ¶4.) Estimates of the cost to do so, in addition to relocating the sewer line located beneath, were over $4 million in 2016. (Decl. of Sozio, Exh. J at ¶¶5-7.)

Plaintiff fails to show an existing or planned use not too distant in the future. (C.C.P. §1240.630(a).) Plaintiff does not have final plans for Metro’s relevant proposed projects and does not identify when the Subject Property will be used by Metro and/or when construction will start. Moreover, those Metro plans do not require the immediate relocation of the City’s existing street and sewer uses. Metro has conceded it would be reasonable for the City to continue its use of the Subject Property for street and sewer purposes until Plaintiff identifies an actual project necessitating relocation, which will be done as a part of that actual project. (Decl. of Sozio, Exh. J at ¶10.)

Further, Plaintiff’s argument in its opposition that that Subject Property is being acquired for the “Interstate 5 Improvement Project” does not align with its allegations in its Complaint, which characterizes the acquisition as “[f]or Freeway purposes, a railroad easement.” (Compare Opposition, pg. 5 with Complaint, Exh. 3.)

Assuming, arguendo, Plaintiff established a reasonably anticipated use of the Subject Property as conveyance to Metro “for railroad purposes,” Plaintiff also must also show that the City’s use would interfere with or impair Plaintiff’s use to a “point of unreconcilable conflict.” (City of Pasadena v. California-Michigan Land and Water Co. (1941) 17 Cal.2d 576, 583.) For example, Plaintiff would need to provide actual plans or an actual conflict with the City’s present use. Otherwise, there is no basis to conclude the City’s use conflicts with Plaintiff’s reasonably anticipated use.

Here, Plaintiff fails to identify what the “future” need for the Subject Property is beyond “State highway purposes,” or “railroad purposes,” which Plaintiff is further unable to define. “Reserving” land for future tracks that are not yet planned, existing, or reasonably existing in the future is not inconsistent with the City’s continued use of that land for street and sewer purposes until relocation is actually necessary. Plaintiff fails to meet its burden to show “a point of

unreconcilable conflict” between the City’s existing use of its easement for street and sewer purposes and Plaintiff’s acquisition of the Subject Property for “railroad purposes.”

Defendant City’s motion permitting the City’s continued public use of the Subject Property for street and sewer purposes until an actual project requiring imminent relocation of the City’s improvements in the Subject Property is identified, at which point the fair market value of the City’s easement interest and the cost of relocation of the City’s facilities will be paid to the City as part of that project, is granted.

Hon. Daniel M. Crowley

Judge of the Superior Court