Burbank-Glendale-Pasadena Airport Authority v. Hensler (2000)

BURBANK-GLENDALE-PASADENA AIRPORT AUTHORITY, Plaintiff and Respondent, v. ROBERT R. HENSLER, Defendant and Appellant.

[Modification fn. * of Opinion (83 Cal.App.4th 556) on denial of petition for rehearing.]

THE COURT.-

It is ordered that the opinion filed herein on August 30, 2000 be modified as follows:

1. On page 3, lines 15 and 16 [83 Cal. App. 4th 558, advance report, 4th par., lines 4-5], the following sentence should be deleted: "Part of Hensler's property lay in the path of the proposed taxiway extension."

2. On page 3 [83 Cal. App. 4th 558, advance report], the first sentence of the final paragraph beginning "In a September 18, 1989, resolution, the Airport Authority Commission" should be modified to read:

In a September 18, 1989, resolution, the Airport Authority Commission declared the necessity of condemning Hensler's property, part of which lay in the path of the proposed taxiway extension and proposed service road.

The remainder of the paragraph remains unchanged.

fn. † 3. On page 17, after the paragraph that concludes "we reject this claim on appeal[]" and before the paragraph that begins "Hensler correctly notes" a new paragraph should be added as follows:

Hensler argues that his failure to appear at the hearing on the resolution of necessity did not waive his right to challenge the necessity of the taking, and that the trial court erroneously found waiver based on People ex rel Dept. of Transportation v. Cole, supra, 7 Cal. App. 4th 1281. It is undisputed that Hensler received notice of the July 19, 1993, hearing on the necessity of [83 Cal. App. 4th 1308b] condemnation, that Hensler through his attorney advised that he would attend, and that Hensler then failed to appear. These facts make an even stronger case for applying the waiver rule than the facts before the Cole court. In Cole the public agency seeking to condemn property gave notice to the defendants that at the hearing on the resolution of necessity, defendants had the right to challenge whether the public agency made a Government Code section 7267.2 offer to them. Cole found that defendants' failure to appear waived their challenge to that Government Code requirement. Here Hensler stated his intention to appear to challenge the necessity of the condemnation. Under the rationale of Cole, supra, at p. 1286, his failure to appear waived subsequent challenge to the resolution of necessity.

4. The disposition [83 Cal. App. 4th 565, advance report] is modified to read:

The judgment is affirmed. The court orders the parties to bear their own costs on appeal.

This modification changes the judgment.

Appellant's petition for rehearing is denied.

FN *.This modification requires movement of text affecting pages 558-560 of the bound volume report.

FN †. Reporter's Note: No. 3 applies to the nonpublished portion of the opinion.