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Court of Appeal Upholds DWK’s Pre-condemnation Right-of-Entry Order

  • December 08, 2015

December 08, 2015

Young’s Market Company v. Superior Court (Cal. Ct. App., Nov. 19, 2015, D068213) 2015 WL 7302204

The Court of Appeal upheld an Order obtained by Dannis Woliver Kelley to allow San Diego Unified School District to conduct limited environmental testing of a commercial property under consideration for acquisition.  The property owner argued that any activity conducted under the Entry Statutes (Code Civ. Proc. 1245 et seq.) resulting in physical removal of property – including soil samples and postage stamp-sized pieces of building material – was a “taking” requiring a full condemnation process.  The Court of Appeal thoroughly analyzed the relevant Constitutional authorities, applied them to the facts, and concluded that the minimal intrusion authorized by the trial court’s Order did not amount to a taking.

We are pleased that the Court of Appeal upheld this practical application of a common-sense statute, permitting school districts to make cost-effective assessments of potential acquisitions, without having to undertake wasteful and duplicative eminent domain actions. The property owner is seeking review of this decision by the California Supreme Court.  We will keep you informed of any further developments.

For more information about this case, or any other questions, please contact a DWK attorney.

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