Article 2 - Resolution of Necessity

California Code of Civil Procedure — §§ 1245.210-1245.270

Sections (10)

Amended by Stats. 2022, Ch. 478, Sec. 3. (AB 1936) Effective January 1, 2023.

As used in this article, “governing body” means:

(a)In the case of a taking by a local public entity, the legislative body of the local public entity.

(b)In the case of a taking by the Sacramento and San Joaquin Drainage District, the Central Valley Flood Protection Board.

(c)In the case of a taking by the State Public Works Board pursuant to the Property Acquisition Law (Part 11 (commencing with Section 15850) of Division 3 of Title 2 of the Government Code), the State Public Works Board.

(d)In the case of a taking by the Department of Fish and Wildlife pursuant to Section 1348 of the

Fish and Game Code, the Wildlife Conservation Board.

(e)In the case of a taking by the Department of Transportation (other than a taking pursuant to Section 21633 of the Public Utilities Code or Section 30100 of the Streets and Highways Code), the California Transportation Commission.

(f)In the case of a taking by the Department of Transportation pursuant to Section 21633 of the Public Utilities Code, the California Transportation Commission.

(g)In the case of a taking by the Department of Transportation pursuant to Section 30100 of the Streets and Highways Code, the California Transportation Commission.

(h)In the case of a taking by the Department of Water Resources, the California Water Commission.

(i)In the case of a taking by the University of California, the Regents of the University of California.

(j)In the case of a taking by the State Lands Commission, the State Lands Commission.

(k)In the case of a taking by the college named in Section 92200 of the Education Code, the board of directors of that college.

(l)In the case of a taking by the High-Speed Rail Authority, the State Public Works Board.

§ 1245.220

Added by Stats. 1975, Ch. 1275.

A public entity may not commence an eminent domain proceeding until its governing body has adopted a resolution of necessity that meets the requirements of this article.

§ 1245.230

Amended by Stats. 1983, Ch. 1079, Sec. 1.

In addition to other requirements imposed by law, the resolution of necessity shall contain all of the following:

(a)A general statement of the public use for which the property is to be taken and a reference to the statute that authorizes the public entity to acquire the property by eminent domain.

(b)A description of the general location and extent of the property to be taken, with sufficient detail for reasonable identification.

(c)A declaration that

the governing body of the public entity has found and determined each of the following:

(1)The public interest and necessity require the proposed project.

(2)The proposed project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury.

(3)The property described in the resolution is necessary for the proposed project.

(4)That either the offer required by Section 7267.2 of the Government Code has been made to the owner or owners of record, or the offer has not been made because the owner cannot be located with reasonable diligence.

If at the time the governing body of a public entity is requested to adopt a resolution of necessity and the

project for which the property is needed has been determined by the public entity to be an emergency project, which project is necessary either to protect or preserve health, safety, welfare, or property, the requirements of Section 7267.2 of the Government Code need not be a prerequisite to the adoption of an authorizing resolution at the time. However, in those cases the provisions of Section 7267.2 of the Government Code shall be implemented by the public entity within a reasonable time thereafter but in any event, not later than 90 days after adoption of the resolution of necessity.

§ 1245.235

Amended by Stats. 1986, Ch. 358, Sec. 1.

(a)The governing body of the public entity may adopt a resolution of necessity only after the governing body has given each person whose property is to be acquired by eminent domain and whose name and address appears on the last equalized county assessment roll notice and a reasonable opportunity to appear and be heard on the matters referred to in Section 1240.030.

(b)The notice required by subdivision (a) shall be sent by first-class mail to each person described in subdivision (a) and shall state all of the following:

(1)The intent of the governing body to adopt the resolution.

(2)The right of such person to appear and be heard on the matters referred to in Section 1240.030.

(3)Failure to file a written request to appear and be heard within 15 days after the notice was mailed will result in waiver of the right to appear and be heard.

(c)The governing body, or a committee of not less than 11 members thereof designated by the governing body if the governing body has more than 40 members, shall hold a hearing at which all persons described in subdivision (a) who filed a written request within the time specified in the notice may appear and be heard on the matters referred to in Section 1240.030. Such a committee shall be reasonably representative of the various

geographical areas within the public entity’s jurisdiction. The governing body need not give an opportunity to appear and be heard to any person who fails to so file a written request within the time specified in the notice. If a committee is designated by the governing body pursuant to this subdivision to hold the hearing, the committee, subsequent to the hearing, shall provide the governing body and any person described in subdivision (a) who has appeared before the committee with a written summary of the hearing and a written recommendation as to whether to adopt the resolution of necessity. Any person described in subdivision (a) who has appeared before the committee shall also be given an opportunity to appear and be heard before the governing body on the matters referred to in Section 1240.030.

(d)Notwithstanding subdivision (b), the governing body may satisfy the requirements of this section through any other procedure that has given

each person described in subdivision (a) reasonable written personal notice and a reasonable opportunity to appear and be heard on the matters referred to in Section 1240.030.

§ 1245.240

Added by Stats. 1975, Ch. 1275.

Unless a greater vote is required by statute, charter, or ordinance, the resolution shall be adopted by a vote of two-thirds of all the members of the governing body of the public entity.

§ 1245.245

Amended by Stats. 2007, Ch. 130, Sec. 36. Effective January 1, 2008.

(a)Property acquired by a public entity by any means set forth in subdivision (e) that is subject to a resolution of necessity adopted pursuant to this article shall only be used for the public use stated in the resolution unless the governing body of the public entity adopts a resolution authorizing a different use of the property by a vote of at least two-thirds of all members of the governing body of the public entity, or a greater vote as required by statute, charter, or ordinance. The resolution shall contain all of the

following:

(1)A general statement of the new public use that is proposed for the property and a reference to the statute that would have authorized the public entity to acquire the property by eminent domain for that use.

(2)A description of the general location and extent of the property proposed to be used for the new use, with sufficient detail for reasonable identification.

(3)A declaration that the governing body has found and determined each of the following:

(A)The public interest and necessity require the proposed use.

(B)The proposed use is planned and located in the manner that will be most compatible with the greatest public good and least private injury.

(C)The property described in the resolution is necessary for the proposed use.

(b)Property acquired by a public entity by any means set forth in subdivision (e) that is subject to a resolution of necessity pursuant to this article, and is not used for the public use stated in the resolution of necessity within 10 years of the adoption of the resolution of necessity, shall be sold in accordance with the terms of subdivisions (f) and (g), unless the governing body adopts a resolution according to the terms of subdivision (a) or a resolution according to the terms of this subdivision reauthorizing the existing stated public use of the property by a vote of at least two-thirds of all members of the governing body of the public entity or a greater vote as required by statute, charter, or ordinance. A reauthorization resolution under this subdivision shall contain all of the

following:

(1)A general statement of the public use that is proposed to be reauthorized for the property and a reference to the statute that authorized the public entity to acquire the property by eminent domain for that use.

(2)A description of the general location and extent of the property proposed to be used for the public use, but not yet in use for the public use, with sufficient detail for reasonable identification.

(3)A declaration that the governing body has found and determined each of the following:

(A)The public interest and necessity require the proposed use.

(B)The proposed use is planned and located in the manner that will be most compatible with the greatest public

good and least private injury.

(C)The property described in the resolution is necessary for the proposed use.

(c)In addition to any notice required by law, the notice required for a new or reauthorization resolution sought pursuant to subdivision (a) or (b) shall comply with Section 1245.235 and shall be sent to each person who was given notice required by Section 1245.235 in connection with the original acquisition of the property by the public entity.

(d)Judicial review of an action pursuant to subdivision (a) or (b) may be obtained by a person who had an interest in the property described in the resolution at the time that the property was acquired by the public entity, and shall be governed by Section 1085.

(e)The following property acquisitions

are subject to the requirements of this section:

(1)Any acquisition by a public entity pursuant to eminent domain.

(2)Any acquisition by a public entity following adoption of a resolution of necessity pursuant to this article for the property.

(3)Any acquisition by a public entity prior to the adoption of a resolution of necessity pursuant to this article for the property, but subsequent to a written notice that the public entity may take the property by eminent domain.

(f)If the public entity fails to adopt either a new resolution pursuant to subdivision (a) or a reauthorization resolution pursuant to subdivision (b), as required by this section, and that property was not used for the public use stated in a resolution of necessity adopted pursuant

to this article or a resolution adopted pursuant to subdivision (a) or (b) between the time of its acquisition and the time of the public entity’s failure to adopt a resolution pursuant to subdivision (a) or (b), the public entity shall offer the person or persons from whom the property was acquired the right of first refusal to purchase the property pursuant to this section, as follows:

(1)At the present market value, as determined by independent licensed appraisers.

(2)For property that was a single-family residence at the time of acquisition, at an affordable price, which price shall not be greater than the price paid by the agency for the original acquisition, adjusted for inflation, and shall not be greater than fair market value, if the following requirements are met:

(A)The person or persons from whom the

property was acquired certify their income to the public entity as persons or families of low or moderate income.

(B)If the single-family residence is offered at a price that is less than fair market value, the public entity may verify the certifications of income in accordance with procedures used for verification of incomes of purchasers and occupants of housing financed by the California Housing Finance Agency.

(C)If the single-family residence is offered at a price that is less than fair market value, the public entity shall impose terms, conditions, and restrictions to ensure that the residence will either:

(i)Remain owner-occupied by the person or persons from whom the property was acquired for at least five years.

(ii) Remain available to

persons or families of low or moderate income and households with incomes no greater than the incomes of the present occupants in proportion to the area median income for the longest feasible time, but for not less than 55 years for rental units and 45 years for home ownership units.

(D) The Department of Housing and Community Development shall provide to the public entity recommendations of standards and criteria for those prices, terms, conditions, and restrictions.

(g)If after a diligent effort the public entity is unable to locate the person from whom the property was acquired, if the person from whom the property was acquired does not choose to purchase the property as provided in subdivision (f), or if the public entity fails to adopt a resolution as required pursuant to subdivision (a) or (b) but is not required to offer a right of first refusal pursuant to subdivision

(f), the public entity shall sell the property as surplus property pursuant to Article 8 (commencing with Section 54220) of Chapter 5 of Part 1 of Division 2 of Title 5 of the Government Code.

(h)If residential property acquired by a public entity by any means set forth in subdivision (e) is sold as surplus property pursuant to subdivision (g), and that property was not used for the public use stated in a resolution of necessity adopted pursuant to this article or a resolution adopted pursuant to subdivision (a) or (b) between the time of its acquisition and the time of its sale as surplus property, the public entity shall pay to the person or persons from whom the public entity acquired the property the sum of any financial gain between the original acquisition price, adjusted for inflation, and the final sale price.

(i)Upon completion of any acquisition described in

subdivision (e) or upon the adoption of a resolution of necessity pursuant to this section, whichever is later, the public entity shall give written notice to the person or persons from whom the property was acquired as described in subdivision (e) stating that the notice, right of first refusal, and return of financial gain rights discussed in this section may accrue.

(j)At least 60 days before selling the property pursuant to subdivision (g), the public entity shall make a diligent effort to locate the person from whom the property was acquired. At any time before the proposed sale, the person from whom the property was acquired may exercise the rights provided by this section. As used in this section, “diligent effort” means that the public entity has done all of the following:

(1)Mailed the notice of the proposed sale by certified mail, return receipt requested, to the last

known address of the person from whom the property was acquired.

(2)Mailed the notice of the proposed sale by certified mail, return receipt requested, to each person with the same name as the person from whom the property was acquired at any other address on the last equalized assessment roll.

(3)Published the notice of the proposed sale pursuant to Section 6061 of the Government Code in at least one newspaper of general circulation within the city or county in which the property is located.

(4)Posted the notice of the proposed sale in at least three public places within the city or county in which the property is located.

(5)Posted the notice of the proposed sale on the property proposed to be sold.

(k)For purposes of this section, “adjusted for inflation” means the original acquisition price increased to reflect the proportional increase in the Consumer Price Index for all items for the State of California, as determined by the United States Bureau of Labor Statistics, for the period from the date of acquisition to the date the property is offered for sale.

§ 1245.250

Amended by Stats. 1992, Ch. 812, Sec. 3. Effective January 1, 1993.

(a)Except as otherwise provided by statute, a resolution of necessity adopted by the governing body of the public entity pursuant to this article conclusively establishes the matters referred to in Section 1240.030.

(b)If the taking is by a local public entity, other than a sanitary district exercising the powers of a county water district pursuant to Section 6512.7 of the Health and Safety Code, and the property is electric, gas, or water public utility property, the

resolution of necessity creates a rebuttable presumption that the matters referred to in Section 1240.030 are true. This presumption is a presumption affecting the burden of proof.

(c)If the taking is by a local public entity and the property described in the resolution is not located entirely within the boundaries of the local public entity, the resolution of necessity creates a presumption that the matters referred to in Section 1240.030 are true. This presumption is a presumption affecting the burden of producing evidence.

(d)For the purposes of subdivision (b), a taking by the State Reclamation Board for the Sacramento and San Joaquin Drainage District is not a taking by a local public entity.

§ 1245.255

Amended by Stats. 1978, Ch. 286.

(a)A person having an interest in the property described in a resolution of necessity adopted by the governing body of the public entity pursuant to this article may obtain judicial review of the validity of the resolution:

(1)Before the commencement of the eminent domain proceeding, by petition for a writ of mandate pursuant to Section 1085. The court having jurisdiction of the writ of mandate action, upon motion of any party, shall order the writ of mandate action dismissed without prejudice upon commencement of the eminent domain proceeding unless the court determines that

dismissal will not be in the interest of justice.

(2)After the commencement of the eminent domain proceeding, by objection to the right to take pursuant to this title.

(b)A resolution of necessity does not have the effect prescribed in Section 1245.250 to the extent that its adoption or contents were influenced or affected by gross abuse of discretion by the governing body.

(c)Nothing in this section precludes a public entity from rescinding a resolution of necessity and adopting a new resolution as to the same property subject, after the commencement of an eminent domain proceeding, to the same consequences as a conditional dismissal of the proceeding under Section 1260.120.

§ 1245.260

Amended by Stats. 1978, Ch. 411.

(a)If a public entity has adopted a resolution of necessity but has not commenced an eminent domain proceeding to acquire the property within six months after the date of adoption of the resolution, or has commenced such proceeding but has not within six months after the commencement of such proceeding attempted diligently to serve the complaint and the summons relating to such proceeding, the property owner may, by an action in inverse condemnation, do either or both of the following:

(1)Require the public entity to take the property and pay compensation therefor.

(2)Recover damages from the public entity for any interference with the possession and use of the property resulting from adoption of the resolution.

Service by mail pursuant to Section 415.30 shall constitute a diligent attempt at service within the meaning of this section.

(b)No claim need be presented against a public entity under Part 3 (commencing with Section 900) of Division 3.6 of Title 1 of the Government Code as a prerequisite to commencement or maintenance of an action under subdivision (a), but any such action shall be commenced within one year and six months after the date the public entity adopted the resolution of necessity.

(c)A public entity may commence an eminent domain proceeding or rescind a resolution of necessity as a matter of right at any time before

the property owner commences an action under this section. If the public entity commences an eminent domain proceeding or rescinds the resolution of necessity before the property owner commences an action under this section, the property owner may not thereafter bring an action under this section.

(d)After a property owner has commenced an action under this section, the public entity may rescind the resolution of necessity and abandon the taking of the property only under the same circumstances and subject to the same conditions and consequences as abandonment of an eminent domain proceeding.

(e)Commencement of an action under this section does not affect any authority a public entity may have to commence an eminent domain proceeding, take possession of the property pursuant to Article 3 (commencing with Section 1255.410) of Chapter 6, or abandon the eminent domain

proceeding.

(f)In lieu of bringing an action under subdivision (a) or if the limitations period provided in subdivision (b) has run, the property owner may obtain a writ of mandate to compel the public entity, within such time as the court deems appropriate, to rescind the resolution of necessity or to commence an eminent domain proceeding to acquire the property.

§ 1245.270

Amended by Stats. 2024, Ch. 72, Sec. 1. (SB 156) Effective July 2, 2024.

(a)A resolution of necessity does not meet the requirements of this article if the defendant establishes by a preponderance of the evidence both of the following:

(1)A member of the governing body who voted in favor of the resolution received or agreed to receive a bribe, as defined in Section 7 of the Penal

Code, involving adoption of the resolution.

(2)But for the conduct described in paragraph (1), the resolution would not otherwise have been adopted.

(b)Where there has been a prior criminal prosecution of the member for the conduct described in paragraph (1) of subdivision (a), proof of conviction shall be conclusive evidence that the requirement of paragraph (1) of subdivision (a) is satisfied, and proof of acquittal or other dismissal of the prosecution shall be conclusive evidence that the requirement of paragraph (1) of subdivision (a) is not satisfied. Where there is a pending criminal prosecution of the member for the conduct described in paragraph (1) of subdivision (a), the court may take such action as is just under the circumstances of the case.

(c)Nothing in

this section precludes a public entity from rescinding a resolution of necessity and adopting a new resolution as to the same property, subject to the same consequences as a conditional dismissal of the proceeding under Section 1260.120.