BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular Session


          SB 940 (Vidak)
          Version: April 12, 2016
          Hearing Date: May 3, 2016
          Fiscal: Yes
          Urgency: Yes
          TH   


                                        SUBJECT
                                           
              High-Speed Rail Authority: Eminent Domain: Right of First  
                                       Refusal

                                      DESCRIPTION  

          This bill would require the California High-Speed Rail  
          Authority, prior to selling an interest in excess real property,  
          to send notification by certified mail to the last known owner  
          of the real property prior to acquisition by the Authority at  
          his or her last known address, advising him or her that the real  
          property will be offered for sale.  This bill would restrict the  
          authority from selling the real property until at least 30 days  
          after the notification has been sent.

                                      BACKGROUND  

          In 1993, California established the Intercity High-Speed Rail  
          Commission to develop a framework for creating a statewide  
          high-speed rail system.  Following a study released by the  
          Commission in 1996 indicating the feasibility of such a  
          statewide system, the Legislature passed SB 1420 (Costa et al.,  
          Ch. 796, Stats. 1996), which established the California  
          High-Speed Rail Authority (Authority) and directed it to  
          continue planning for the system.  The Authority serves as the  
          administrative body with primary responsibility for overseeing  
          the planning and construction of the high-speed rail system.   
          (See Pub. Util. Code Sec. 185024.)

          Several years later, on November 4, 2008, the voters of  
          California passed Proposition 1A, the Bond Act, "to initiate the  









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          construction of a high-speed train system that connects the San  
          Francisco Transbay Terminal to Los Angeles Union Station and  
          Anaheim, and links the state's major population centers,  
          including Sacramento, the San Francisco Bay Area, the Central  
          Valley, Los Angeles, the Inland Empire, Orange County, and San  
          Diego . . ."  (Sts. & Hy. Code Sec. 2704.04.)  The Bond Act  
          authorized the issuance and sale of $9 billion in general  
          obligation bonds "upon appropriation by the Legislature" to  
          begin construction of the high-speed train system.  (Id.)  Among  
          other capital costs, the Bond Act authorized the Authority to  
          incur costs for "all activities necessary for acquisition of  
          interests in real property and rights-of-way and improvement  
          thereof," as well as "relocation assistance for displaced  
          property owners and occupants."  (Id.)

          In 2013, the Legislature vested the Authority with independent  
          power to manage property acquired for the high-speed rail system  
          with the passage of AB 481 (Lowenthal, Ch. 132, Stats. 2013).   
          Without such independent power, property acquisition and  
          management duties and responsibilities for state agencies  
          generally rest with the Department of General Services.  Under  
          this independent grant of power, the Authority may sell or  
          exchange real property or interest therein at fair market value  
          if it determines that the property, having been acquired by the  
          state for the high-speed rail project, is no longer necessary  
          for that purpose.  (Pub. Util. Code Sec. 185040(a).)  Existing  
          law provides specific procedures for the Authority to follow  
          when selling excess property to adjoining landowners, as well as  
          to public sector entities like municipalities and local  
          agencies.  Absent specific procedures, existing law requires the  
          Authority to sell excess property either by receipt of  
          competitive sealed bids, or at public auction, depending on  
          which method is more likely to achieve the higher sales price.   
          (Pub. Util. Code Sec. 185040(f).)  

          This bill would require the Authority, prior to selling excess  
          property, to send a notice by certified mail to the last known  
          owner of the property at his or her last known address, advising  
          that the property will be offered for sale.  This bill would  
          also restrict the Authority from selling the property until at  
          least 30 days after the notification to the prior owner has been  
          sent.

                                CHANGES TO EXISTING LAW
           








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           Existing law  declares the intent of the Legislature to initiate  
          the construction of a high-speed train system that connects the  
          San Francisco Transbay Terminal to Los Angeles Union Station and  
          Anaheim, and links the state's major population centers,  
          including Sacramento, the San Francisco Bay Area, the Central  
          Valley, Los Angeles, the Inland Empire, Orange County, and San  
          Diego, as specified.  (Sts. & Hy. Code Sec. 2704.04(a).)  

           Existing law  states that the net proceeds received from the sale  
          of $9 billion dollars of bonds shall be used for planning and  
          engineering for the high-speed train system and for other  
          capital costs, as specified.  (Sts. & Hy. Code Sec. 2704.04(b).)

           Existing law  specifies that capital costs payable or  
          reimbursable include, with respect to the high-speed train  
          system or any portion thereof, all activities necessary for  
          acquisition of interests in real property and rights-of-way and  
          improvement thereof; acquisition and construction of tracks,  
          structures, power systems, and stations; acquisition of rolling  
          stock and related equipment; mitigation of direct or indirect  
          environmental impacts; relocation assistance for displaced  
          property owners and occupants; other related capital facilities  
          and equipment; and such other purposes related to the foregoing,  
          for the procurement thereof, and for the financing or  
          refinancing thereof, as specified.  (Sts. & Hy. Code Sec.  
          2704.04(c).)

           Existing law  directs the California High-Speed Rail Authority  
          (Authority) to develop and implement an intercity high-speed  
          rail service that is fully integrated with the state's existing  
          intercity rail and bus network, consisting of interlinked  
          conventional and high-speed rail lines and associated feeder  
          buses.  Existing law specifies that the intercity network shall  
          be fully coordinated and connected with commuter rail lines and  
          urban rail transit lines developed by local agencies, as well as  
          other transit services, through the use of common station  
          facilities whenever possible.  (Pub. Util. Code Sec. 185030.)

           Existing law  empowers the Authority to do any of the following,  
          as specified:
           enter into contracts with private or public entities for the  
            design, construction, and operation of high-speed trains;
           acquire rights-of-way through purchase or eminent domain;
           issue debt, secured by pledges of state funds, federal grants,  
            or project revenues;








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           enter into cooperative or joint development agreements with  
            local governments or private entities;
           set fares and schedules; and
           relocate highways and utilities.  (Pub. Util. Code Sec.  
            185036.)

           Existing law  provides that if the Authority determines real  
          property or an interest therein, previously or hereafter  
          acquired by the state for high-speed rail purposes, is no longer  
          necessary for those purposes, the Authority may sell or exchange  
          the real property or interest therein at fair market value.   
          (Pub. Util. Code Sec. 185040(a).)

           Existing law  states that the Authority may sell excess property  
          to an adjoining landowner if it makes either of the following  
          two findings:
           that the property is of a size or shape that is below the  
            average, normal standard size and shape of other privately  
            owned properties in the immediate neighborhood, and that if  
            the property were sold to other than the adjoining owner, it  
            would give rise to a land use development that would be below  
            and not consistent with the normal land use of other  
            properties in that neighborhood, that the sale of the property  
            to a party other than the adjoining owner may cause an undue  
            or unfair hardship to the adjoining owner in the normal land  
            use development or operation of his or her property, that the  
            property considered as part of the adjoining property would  
            have a higher and better use than under separate ownership,  
            and that the fair market value of the property considered as  
            part of the adjoining property would be higher than under  
            separate ownership; or
           that the sale of the excess parcel to other than the adjoining  
            owner would deprive the adjoining owner of an existing vested  
            right of access to a public highway and thereby create a  
            possible cause of action against the authority or the state.   
            (Pub. Util. Code Sec. 185040(b).)
           Existing law  provides that the Authority may sell excess  
          property to municipalities or other local agencies at their  
          request, without calling for competitive bids, at a price  
          representing the fair market value thereof, and upon a  
          determination that the intended use is for a public purpose.   
          (Pub. Util. Code Sec. 185040(c).)
          

           Existing law  provides that if it is improved property, excess  








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          property may be sold to a former owner who has remained in  
          occupancy, or to a residential tenant of a tenure of five years  
          or more with all rent obligations current or paid in full.   
          (Pub. Util. Code Sec. 185040(d).)



           Existing law provides that any real property or interest therein  
          may in like manner be exchanged, either as whole or part  
          consideration, for any other real property or interest therein  
          as needed for high-speed rail purposes, as specified.  (Pub.  
          Util. Code Sec. 185040(e).)



           Existing law  provides that the Authority may sell or lease  
          excess right-of-way parcels to municipalities or other local  
          agencies for public purposes, and may accept as all or part of  
          the consideration for the sale or lease any substantial benefits  
          the state will derive from the municipality or other local  
          agency's undertaking maintenance or landscaping costs that would  
          otherwise be the obligation of the state.  (Pub. Util. Code Sec.  
          185041.)



           Existing law  states that, except as provided, excess property  
          shall be sold either by receipt of competitive sealed bids, or  
          at public auction, whichever method is determined by the  
          authority to be more likely to achieve the higher sales price.   
          (Pub. Util. Code Sec. 185040(f).)



           This bill  requires the Authority, prior to selling excess real  
          property or an interest therein, to send notification by  
          certified mail to the last known owner of the real property or  
          interest therein at his or her last known address, advising him  
          or her that the real property or interest therein will be  
          offered for sale.



           This bill  states that the Authority shall not sell the excess  
          real property or interest therein until at least 30 days after  








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          the notification required in the above provision has been sent.
          
                                        COMMENT
           
           1.Stated need for the bill  

          According to the author:

            Nearly 1,300 individual properties have been identified by the  
            High-Speed Rail (HSR) Authority as necessary to complete the  
            planned 120 mile route from Madera to Bakersfield.  Many of  
            these properties have been in families for generations, and  
            HSR may end up splitting properties or severely limit the  
            productivity of any remaining property.  While these 1,300  
            properties have been identified as necessary to complete the  
            current alignment, there is always a possibility that the  
            preferred route may change or that the project is never  
            completed, leaving the state holding onto properties it no  
            longer needs.

            In 2013 the Legislature passed, and the Governor signed, AB  
            481 which stated that the Authority may dispose of properties  
            that it deems no longer necessary.  Unfortunately this  
            legislation did not require the Authority to dispose of  
            unneeded properties.  Additionally, AB 481 did not provide the  
            original landowner, or their family, an opportunity to  
            repurchase the land.  

            Under current law, it is possible for the Authority to decide  
            that a property they acquired is no longer necessary and they  
            could decide to hold onto the property in perpetuity or decide  
            to sell it to someone else, without even contacting the  
            original property owner to see if they are interested in  
            buying the property back.  Senate Bill 940 would require the  
            High-Speed Rail Authority to notify previous landowners and  
            their families of excess land that the Authority has deemed  
            not necessary for High-Speed Rail (HSR) and that the Authority  
            plans to sell.

           2.Informing prior owners of land sales  

          Real property, unlike many other saleable assets, is considered  
          somewhat unique under the law.  At common law, because land was  
          viewed as immovable and, to some extent, eternal, English courts  
          and the resulting case law considered each parcel of land to be  








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          distinguishable from all others.  The unique character of land  
          under the law has passed into California's Civil Code in various  
          forms, including in Section 3387, which provides specific  
          remedies for breaches of agreements to transfer real property  
          not normally applicable to the performance of contractual  
          obligations.<1>

          This bill, in a way, follows this common law tradition by  
          establishing a notification process for prior owners of land  
          held by the California High-Speed Rail Authority to learn that  
          it will be offered for sale.  The bill would require the  
          Authority to notify the prior owner, at their last known  
          address, by certified mail that land they once owned has been  
          deemed in excess to the Authority's requirements and will be  
          sold, ostensibly so the prior owner can seek to repurchase the  
          land.  The bill would also require the Authority to refrain from  
          selling the land for at least 30 days after sending the notice  
          to the prior owner.  However, the bill would not provide the  
          prior owner with any special right to purchase the land, such as  
          a right of first refusal.  Rather, the prior owner would have to  
          purchase the land on the open market through the Authority's  
          sale process just as any other prospective purchaser, unless the  
          prior owner received priority under some other provision of law,  
          such as that provided to former owners of improved property who  
          have remained in occupancy.

           3.Logistical concerns
           
          While this bill may be useful in reuniting certain prior owners  
          with land they formerly owned, its notification provision could  
          become largely obsolete the further that period of prior  
          ownership is from the point in time at which the Authority  
          offers the land for sale.  Under the bill, the authority would  
          only be obligated to send a notice of sale to the prior owner of  
          an excess parcel at their last known address.  If a period of  
          years has elapsed, it is quite possible that the prior owner  
          ---------------------------
          <1> Civil Code Section 3387 states:

            It is to be presumed that the breach of an agreement to  
            transfer real property cannot be adequately relieved by  
            pecuniary compensation.  In the case of a single-family  
            dwelling which the party seeking performance intends to  
            occupy, this presumption is conclusive.  In all other cases,  
            this presumption is a presumption affecting the burden of  
            proof.








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          will have moved away, rendering the notification process  
          ineffective.  If a significant period of time elapses, the  
          remote chance of notifying a prior owner of a pending sale may  
          be outweighed by the time and expense endured by the Authority  
          to retain the necessary records and go through the notification  
          process.


           Support  :  Citizens for California High Speed Rail  
          Accountability; Kings County Board of Supervisors; Southwest  
          California Legislative Council

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  None Known

           Prior Legislation  :

          AB 1138 (Patterson, 2015) would have prohibited the High-Speed  
          Rail Authority, or the State Public Works Board acting on behalf  
          of the Authority, from adopting a resolution of necessity to  
          commence an eminent domain proceeding to acquire a parcel of  
          real property along a corridor, or usable segment thereof, for  
          the high-speed train system unless the resolution identified the  
          sources of all funds to be invested in the corridor or usable  
          segment, and certified that the Authority had completed all  
          necessary project level environmental clearances necessary to  
          proceed to construction, as specified.  This bill died in the  
          Assembly Transportation Committee.

          AB 481 (Lowenthal, Ch. 132, Stats. 2013) granted the High-Speed  
          Rail Authority (HSRA) independent authority to manage property  
          acquired for high-speed rail purposes, similar to the  
          independent authority provided to the Department of  
          Transportation.  Among other things, this bill authorized the  
          HSRA to acquire, grant access to, and quitclaim easements and  
          rights-of-way on property owned or being acquired by the state,  
          and to sell property no longer needed for high-speed rail  
          purposes at fair market value to an adjacent property owner, a  
          local agency, or former owner, as specified.









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          SB 1420 (Costa et al., Ch. 796, Stats. 1996) created the  
          High-Speed Rail Authority and required the Authority to develop  
          and implement high speed rail services that interconnect with  
          existing intercity rail and bus services.  Among other things,  
          this bill authorized the Authority, upon receiving either  
          legislative or voter approval, to contract for the design,  
          construction and operation of a high-speed rail network, and to  
          take associated implementation steps, including acquiring land  
          and rights-of-way for the high-speed rail network.

           Prior Vote  :  Senate Transportation and Housing Committee (Ayes  
          10, Noes 0)

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