BILL NUMBER: AB 2162 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Niello
FEBRUARY 18, 2010
An act to amend Sections 1255.410 and 1255.450 of the Code of
Civil Procedure, and to amend Section 625 of the Public Utilities
Code, relating to eminent domain.
LEGISLATIVE COUNSEL'S DIGEST
AB 2162, as introduced, Niello. Eminent domain: public utilities.
(1) Under existing law, the Public Utilities Commission has
regulatory authority over public utilities, including gas
corporations, as defined. The existing Public Utilities Act prohibits
any gas corporation from beginning the construction of, among other
things, a line, plant, or system, or of any extension thereof,
without having first obtained from the commission a certificate that
the present or future public convenience and necessity require or
will require that construction (certificate of public convenience and
necessity). Existing law authorizes certain public utilities to
condemn property, as prescribed, but prohibits specified public
utilities that offer competitive services from condemning any
property for the purpose of competing with another entity in the
offering of those competitive services, unless the commission finds,
pursuant to a petition or complaint filed by the public utility, in
accordance with specified provisions that such an action would serve
the public interest.
This bill would provide that the existing prohibition upon
specified public utilities condemning property if they offer
competitive services does not apply to a gas corporation seeking to
develop a natural gas storage facility in a natural gas reservoir if
the issue of the need for the storage project at the proposed
location was litigated in an evidentiary hearing before the
commission pursuant to an application for a certificate of public
convenience and necessity.
(2) The Eminent Domain Law provides the procedure for the exercise
of the power of eminent domain by governmental entities and public
utilities and authorizes the plaintiff to make an application to the
court to take possession of property prior to judgment and sets forth
the procedures the plaintiff must follow. Existing law authorizes a
court to issue an order of possession upon an ex parte application by
a water, wastewater, gas, electric, or telephone utility, as the
court deems appropriate under the circumstances of the case, if the
court finds that (A) an emergency exists and as a consequence the
utility has an urgent need for possession of the property, and (B) an
emergency order of possession will not displace or unreasonably
affect any person in actual and lawful possession of the property to
be taken or the larger parcel of which it is a part. Existing law
authorizes a defendant or occupant of the property to move for relief
from an order of possession issued on behalf of a utility because of
an emergency and authorizes the court to modify, stay, or vacate the
order upon consideration of the relevant facts and any objections
raised, and upon completion of a hearing, if requested.
This bill would authorize a court to issue an order for possession
upon an ex parte application by a water, wastewater, gas,
electrical, or telephone utility if the court finds that (A) the
commission has issued a certificate of public convenience and
necessity for the project, (B) the issue of need for the proposed
project at the proposed location was litigated through an evidentiary
hearing before the commission pursuant to an application for a
certificate of public convenience and necessity, and (C) the order of
possession will not displace or unreasonably affect any person in
actual and lawful possession of the property to be taken or the
larger parcel of which it is a part. The existing right of a
defendant or occupant of the property to move for relief would be
applicable to any order of possession issued pursuant to this
authority.
This bill would, in cases where property is being taken for the
purpose of storing natural gas in a depleted natural gas field,
require that the plaintiff serve a copy of the order for possession
on the record owner of the property and on the occupants, if any, not
less than 10 days prior to the time possession is to be taken
pursuant to the order. The bill would provide that an order of
possession may be served by mail upon an owner or occupant who
previously appeared in or was provided with notice pursuant to the
notice procedures of the commission in a prior proceeding of the
commission acting upon an application by the plaintiff for a
certificate of public convenience and necessity as to the project for
which possession of the property is required.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1255.410 of the Code of Civil Procedure is
amended to read:
1255.410. (a) At the time of filing the complaint or at any time
after filing the complaint and prior to entry of judgment, the
plaintiff may move the court for an order for possession under this
article, demonstrating that the plaintiff is entitled to take the
property by eminent domain and has deposited pursuant to Article 1
(commencing with Section 1255.010) an amount that satisfies the
requirements of that article.
The motion shall describe the property of which the plaintiff is
seeking to take possession, which description may be by reference to
the complaint, and shall state the date after which the plaintiff is
seeking to take possession of the property. The motion shall include
a statement substantially in the following form: "You have the right
to oppose this motion for an order of possession of your property. If
you oppose this motion you must serve the plaintiff and file with
the court a written opposition to the motion within 30 days from the
date you were served with this motion." If the written opposition
asserts a hardship, it shall be supported by a declaration signed
under penalty of perjury stating facts supporting the hardship.
(b) The plaintiff shall serve a copy of the motion on the record
owner of the property and on the occupants, if any. The plaintiff
shall set the court hearing on the motion not less than 60 days after
service of the notice of motion on the record owner of unoccupied
property. If the property is lawfully occupied by a person dwelling
thereon or by a farm or business operation, service of the notice of
motion shall be made not less than 90 days prior to the hearing on
the motion.
(c) Not later than 30 days after service of the plaintiff's motion
seeking to take possession of the property, any defendant or
occupant of the property may oppose the motion in writing by serving
the plaintiff and filing with the court the opposition. If the
written opposition asserts a hardship, it shall be supported by a
declaration signed under penalty of perjury stating facts supporting
the hardship. The plaintiff shall serve and file any reply to the
opposition not less than 15 days before the hearing.
(d) (1) If the motion is not opposed within 30 days of service on
each defendant and occupant of the property, the court shall make an
order for possession of the property if the court finds each of the
following:
(A) The plaintiff is entitled to take the property by eminent
domain.
(B) The plaintiff has deposited pursuant to Article 1 (commencing
with Section 1255.010) an amount that satisfies the requirements of
that article.
(2) If the motion is opposed by a defendant or occupant within 30
days of service, the court may make an order for possession of the
property upon consideration of the relevant facts and any opposition,
and upon completion of a hearing on the motion, if the court finds
each of the following:
(A) The plaintiff is entitled to take the property by eminent
domain.
(B) The plaintiff has deposited pursuant to Article 1 (commencing
with Section 1255.010) an amount that satisfies the requirements of
that article.
(C) There is an overriding need for the plaintiff to possess the
property prior to the issuance of final judgment in the case, and the
plaintiff will suffer a substantial hardship if the application for
possession is denied or limited.
(D) The hardship that the plaintiff will suffer if possession is
denied or limited outweighs any hardship on the defendant or occupant
that would be caused by the granting of the order of possession.
(e) (1) Notwithstanding the time limits for notice prescribed by
this section and Section 1255.450, a court may issue an order of
possession upon an ex parte application by a water, wastewater, gas,
electric electrical , or telephone
utility, as the court deems appropriate under the circumstances of
the case, if the court finds each of the following:
(A) An emergency exists and as a consequence the utility has an
urgent need for possession of the property. For purposes of this
section, an emergency is defined to include, but is not limited to, a
utility's urgent need to protect the public's health and safety or
the reliability of utility service.
(B) An emergency order of possession will not displace or
unreasonably affect any person in actual and lawful possession of the
property to be taken or the larger parcel of which it is a part.
(2) Notwithstanding the time limits for notice prescribed by this
section and Section 1255.450, a court may also issue an order for
possession upon an ex parte application by a water, wastewater, gas,
electrical, or telephone utility as the court deems appropriate under
the circumstances of the case, if the court finds each of the
following:
(A) The Public Utilities Commission has issued a certificate of
public convenience and necessity for the project, pursuant to Chapter
5 (commencing with Section 1001) of Part 1 of Division 1 of the
Public Utilities Code, for which possession of the property is
required.
(B) The issue of need for the proposed project at the proposed
location was litigated through an evidentiary hearing before the
Public Utility Commission pursuant to the application for a
certificate of public convenience and necessity.
(C) An order of possession will not displace or unreasonably
affect any person in actual and lawful possession of the property to
be taken or the larger parcel of which it is a part.
(2)
(3) Not later than 30 days after service of the order
authorizing the plaintiff to take possession of the property, any
defendant or occupant of the property may move for relief from an
emergency ex parte order of possession
that has been issued under this subdivision. The court may modify,
stay, or vacate the order upon consideration of the relevant facts
and any objections raised, and upon completion of a hearing if
requested.
SEC. 2. Section 1255.450 of the Code of Civil Procedure is amended
to read:
1255.450. (a) As used in this section, "record owner" means the
owner of the legal or equitable title to the fee or any lesser
interest in property as shown by recorded deeds or other recorded
instruments.
(b) The plaintiff shall serve a copy of the order for possession
issued under Section 1255.410 on the record owner of the property and
on the occupants, if any. If the property is lawfully occupied by a
person dwelling thereon or by a farm or business operation, service
shall be made not less than 30 days prior to the time possession is
to be taken pursuant to the order. In all other cases, including
cases in which property is being taken for the purpose of
storing natural gas in a depleted natural gas field, service
shall be made not less than 10 days prior to the time possession is
to be taken pursuant to the order. Service may be made with or
following service of summons.
(c) At least 30 days prior to the time possession is taken
pursuant to an order for possession made pursuant to Section
1255.040, 1255.050, or 1255.460, the plaintiff shall serve a copy of
the order on the record owner of the property and on the occupants,
if any.
(d) Service of the order shall be made by personal service except
that:
(1) If the person on whom service is to be made has previously
appeared in the proceeding or been served with summons in the
proceeding, or has previously appeared in or been
provided with notice pursuant to the notice procedures of the Public
Utilities Commission in a prior proceeding of the commission, acting
upon an application by the plaintiff for a certificate of public
convenience and necessity pursuant to Chapter 5 (commencing with
Section 1001) of Part 1 of Division 1 of the Public Utilities Code,
as to the project for which possession of the property is required
, service of the order may be made by mail upon that
person and his or her attorney of record, if any.
(2) If the person on whom service is to be made resides out of the
state, or has departed from the state or cannot with due diligence
be found within the state, service of the order may be made by
registered or certified mail addressed to that person at his or her
last known address.
(e) When If the record owner cannot
be located, the court may, for good cause shown on ex parte
application, authorize the plaintiff to take possession of unoccupied
property without serving a copy of the order for possession upon a
record owner.
(f) A single service upon or mailing to one of several persons
having a common business or residence address is sufficient.
SEC. 3. Section 625 of the Public Utilities Code is amended to
read:
625. (a) (1) (A) For the purpose of this article, except as
specified in paragraph (4), a public utility that offers competitive
services may not condemn any property for the purpose of competing
with another entity in the offering of those competitive services,
unless the commission finds that such an action would serve the
public interest, pursuant to a petition or complaint filed by the
public utility, personal notice of which has been served on the
owners of the property to be condemned, and an adjudication hearing
in accordance with Chapter 9 (commencing with Section 1701),
including an opportunity for the public to participate.
(B) The requirements of this section do not apply to the
condemnation of any property that is necessary solely for an
electrical company corporation or gas
corporation to meet its commission-ordered obligation to serve.
Proposed exercises of eminent domain by electrical or gas
corporations that initially, or subsequently, acquire property for
either commission-ordered electrical corporation obligation to serve
and competitive telecommunications services or gas corporation
obligation to serve and telecommunications services are subject to
paragraph (2) of subdivision (b). For property acquired through the
exercise of eminent domain after January 1, 2000, by an electrical or
gas corporation solely to meet its commission-ordered obligation to
serve, any electrical or gas corporation, or subsidiary or affiliate,
that intends to install telecommunication equipment on the property
for the purpose of providing competitive telecommunications services
shall provide notice for the planned installation in the commission
calendar.
(2) (A) Before making a finding pursuant to this subdivision, the
commission shall conduct the hearing in the local jurisdiction that
would be affected by the proposed condemnation. The hearing shall
commence within 45 days of the date that the petition or complaint is
filed, unless the respondent establishes that an extension of not
more than 30 days is necessary for discovery or other hearing
preparation. The commission shall provide public notice of the
hearing pursuant to the procedures of the commission and shall also
notify the local jurisdiction. In addition, the commission shall
provide the local jurisdiction with copies of the notice of hearing
in time for the local jurisdiction to mail that notice at least seven
days in advance of the hearing to all persons who have requested
copies of the local jurisdiction's agenda or agenda packet pursuant
to Section 54954.1 of the Government Code.
(B) For purposes of subparagraph (A), "local jurisdiction" means
each city within whose boundaries property sought to be taken by
eminent domain is located, and if property sought to be taken is not
located within city boundaries, each county within whose boundaries
that property is located. However, where there is more than one local
jurisdiction with respect to a single complaint or petition, the
commission shall provide notice and copies of notices for mailing to
all local jurisdictions involved, but shall hold only a single
hearing in any one of those local jurisdictions.
(3) (A) The assigned commissioner or administrative law judge
shall render a decision on making a finding in accordance with this
subdivision within 45 days of the conclusion of the hearing, unless
further briefing is ordered, in which event this period may be
extended by up to 30 additional days to allow for briefing.
(B) If the rendering of a decision pursuant to this subdivision
requires review under the California Environmental Quality Act
(Division 13 (commencing with Section 21000) of the Public Resources
Code), then the time limits contained in subparagraph (A) of
paragraph (2) and subparagraph (A) of this paragraph
(3) shall be extended as needed to accommodate
that review.
(4) This subdivision and Section 626 do not apply to a railroad
corporation, a refined petroleum product common carrier pipeline
corporation, or a water corporation , or a
gas corporation seeking to develop a natural gas storage facility in
a natural gas reservoir if the issue of the need for the storage
project at the proposed location was litigated in an evidentiary
hearing before the commission pursuant to an application for a
certificate of public convenience and necessity .
(b) The commission may make a finding pursuant to subdivision (a)
if, in the determination of the commission, either of the following
conditions is met:
(1) The proposed condemnation is necessary to provide service as a
provider of last resort to an unserved area, except when there are
competing offers from facility-based carriers to serve that area.
(2) The public utility is able to show all of the following with
regard to the proposed condemnation:
(A) The public interest and necessity require the proposed
project.
(B) The property to be condemned is necessary for the proposed
project.
(C) The public benefit of acquiring the property by eminent domain
outweighs the hardship to the owners of the property.
(D) The proposed project is located in a manner most compatible
with the greatest public good and least private injury.
(c) The commission shall develop procedures to facilitate access
for affected property owners to eminent domain proceedings pursuant
to this section, and to facilitate the participation of those owners
in those proceedings.
(d) Nothing in this section relieves a public utility from
complying with Section 1240.030 of the Code of Civil Procedure or any
other requirement imposed by law.
(e) A public utility that does not comply with this section may
not exercise the power of eminent domain, including, but not limited
to, any authority provided by Title 7 (commencing with Section
1230.010) of Part 3 of the Code of Civil Procedure.
(f) The authority provided in this section supplements, and does
not replace or otherwise affect any other limitation in law on the
exercise of the power of eminent domain, including, but not limited
to, any authority provided by Title 7 (commencing with Section
1230.010) of Part 3 of the Code of Civil Procedure.
(g) (1) At the request of a public utility gas corporation, the
commission shall hold the local hearing required in subparagraphs (A)
and (B) of paragraph (2) of subdivision (a) and make and certify the
finding required by paragraph (1) of subdivision (a) as part of the
procedure to issue a certificate of public convenience and necessity.
(2) Notwithstanding any other provision of law, if the commission
holds public hearings during the certification procedure for the
purpose of making the determination required under paragraph (2) of
subdivision (b), the commission shall have an additional 45 days
beyond the date of any otherwise applicable statutory or regulatory
deadline for making a determination.