2005 California Code of Civil Procedure Sections 1245.210-1245.270 Article 2. Resolution of Necessity

1245.210.  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 State Reclamation 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 Game
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 Hastings College of Law, the board
of directors of that college.
1245.220.  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.  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.  (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.  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.
1245.250.  (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.   (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.  (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.  (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 that term is
defined in subdivision 6 of 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.