2010 California Code
Code of Civil Procedure
Article 2. Resolution Of Necessity

CODE OF CIVIL PROCEDURE
SECTION 1245.210-1245.270



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.



1245.245.  (a) Property acquired by a public entity by any means set
forth in subdivision (e) that is subject to a resolution of
necessity adopted pursuant to this article shall only be used for the
public use stated in the resolution unless the governing body of the
public entity adopts a resolution authorizing a different use of the
property by a vote of at least two-thirds of all members of the
governing body of the public entity, or a greater vote as required by
statute, charter, or ordinance. The resolution shall contain all of
the following:
   (1) A general statement of the new public use that is proposed for
the property and a reference to the statute that would have
authorized the public entity to acquire the property by eminent
domain for that use.
   (2) A description of the general location and extent of the
property proposed to be used for the new use, with sufficient detail
for reasonable identification.
   (3) A declaration that the governing body has found and determined
each of the following:
   (A) The public interest and necessity require the proposed use.
   (B) The proposed use is planned and located in the manner that
will be most compatible with the greatest public good and least
private injury.
   (C) The property described in the resolution is necessary for the
proposed use.
   (b) Property acquired by a public entity by any means set forth in
subdivision (e) that is subject to a resolution of necessity
pursuant to this article, and is not used for the public use stated
in the resolution of necessity within 10 years of the adoption of the
resolution of necessity, shall be sold in accordance with the terms
of subdivisions (f) and (g), unless the governing body adopts a
resolution according to the terms of subdivision (a) or a resolution
according to the terms of this subdivision reauthorizing the existing
stated public use of the property by a vote of at least two-thirds
of all members of the governing body of the public entity or a
greater vote as required by statute, charter, or ordinance. A
reauthorization resolution under this subdivision shall contain all
of the following:
   (1) A general statement of the public use that is proposed to be
reauthorized for the property and a reference to the statute that
authorized the public entity to acquire the property by eminent
domain for that use.
   (2) A description of the general location and extent of the
property proposed to be used for the public use, but not yet in use
for the public use, with sufficient detail for reasonable
identification.
   (3) A declaration that the governing body has found and determined
each of the following:
   (A) The public interest and necessity require the proposed use.
   (B) The proposed use is planned and located in the manner that
will be most compatible with the greatest public good and least
private injury.
   (C) The property described in the resolution is necessary for the
proposed use.
   (c) In addition to any notice required by law, the notice required
for a new or reauthorization resolution sought pursuant to
subdivision (a) or (b) shall comply with Section 1245.235 and shall
be sent to each person who was given notice required by Section
1245.235 in connection with the original acquisition of the property
by the public entity.
   (d) Judicial review of an action pursuant to subdivision (a) or
(b) may be obtained by a person who had an interest in the property
described in the resolution at the time that the property was
acquired by the public entity, and shall be governed by Section 1085.
   (e) The following property acquisitions are subject to the
requirements of this section:
   (1) Any acquisition by a public entity pursuant to eminent domain.
   (2) Any acquisition by a public entity following adoption of a
resolution of necessity pursuant to this article for the property.
   (3) Any acquisition by a public entity prior to the adoption of a
resolution of necessity pursuant to this article for the property,
but subsequent to a written notice that the public entity may take
the property by eminent domain.
   (f) If the public entity fails to adopt either a new resolution
pursuant to subdivision (a) or a reauthorization resolution pursuant
to subdivision (b), as required by this section, and that property
was not used for the public use stated in a resolution of necessity
adopted pursuant to this article or a resolution adopted pursuant to
subdivision (a) or (b) between the time of its acquisition and the
time of the public entity's failure to adopt a resolution pursuant to
subdivision (a) or (b), the public entity shall offer the person or
persons from whom the property was acquired the right of first
refusal to purchase the property pursuant to this section, as
follows:
   (1) At the present market value, as determined by independent
licensed appraisers.
   (2) For property that was a single-family residence at the time of
acquisition, at an affordable price, which price shall not be
greater than the price paid by the agency for the original
acquisition, adjusted for inflation, and shall not be greater than
fair market value, if the following requirements are met:
   (A) The person or persons from whom the property was acquired
certify their income to the public entity as persons or families of
low or moderate income.
   (B) If the single-family residence is offered at a price that is
less than fair market value, the public entity may verify the
certifications of income in accordance with procedures used for
verification of incomes of purchasers and occupants of housing
financed by the California Housing Finance Agency.
   (C) If the single-family residence is offered at a price that is
less than fair market value, the public entity shall impose terms,
conditions, and restrictions to ensure that the residence will
either:
   (i) Remain owner-occupied by the person or persons from whom the
property was acquired for at least five years.
   (ii) Remain available to persons or families of low or moderate
income and households with incomes no greater than the incomes of the
present occupants in proportion to the area median income for the
longest feasible time, but for not less than 55 years for rental
units and 45 years for home ownership units.
   (D) The Department of Housing and Community Development shall
provide to the public entity recommendations of standards and
criteria for those prices, terms, conditions, and restrictions.
   (g) If after a diligent effort the public entity is unable to
locate the person from whom the property was acquired, if the person
from whom the property was acquired does not choose to purchase the
property as provided in subdivision (f), or if the public entity
fails to adopt a resolution as required pursuant to subdivision (a)
or (b) but is not required to offer a right of first refusal pursuant
to subdivision (f), the public entity shall sell the property as
surplus property pursuant to Article 8 (commencing with Section
54220) of Chapter 5 of Part 1 of Division 2 of Title 5 of the
Government Code.
   (h) If residential property acquired by a public entity by any
means set forth in subdivision (e) is sold as surplus property
pursuant to subdivision (g), and that property was not used for the
public use stated in a resolution of necessity adopted pursuant to
this article or a resolution adopted pursuant to subdivision (a) or
(b) between the time of its acquisition and the time of its sale as
surplus property, the public entity shall pay to the person or
persons from whom the public entity acquired the property the sum of
any financial gain between the original acquisition price, adjusted
for inflation, and the final sale price.
   (i) Upon completion of any acquisition described in subdivision
(e) or upon the adoption of a resolution of necessity pursuant to
this section, whichever is later, the public entity shall give
written notice to the person or persons from whom the property was
acquired as described in subdivision (e) stating that the notice,
right of first refusal, and return of financial gain rights discussed
in this section may accrue.
   (j) At least 60 days before selling the property pursuant to
subdivision (g), the public entity shall make a diligent effort to
locate the person from whom the property was acquired. At any time
before the proposed sale, the person from whom the property was
acquired may exercise the rights provided by this section. As used in
this section, "diligent effort" means that the public entity has
done all of the following:
   (1) Mailed the notice of the proposed sale by certified mail,
return receipt requested, to the last known address of the person
from whom the property was acquired.
   (2) Mailed the notice of the proposed sale by certified mail,
return receipt requested, to each person with the same name as the
person from whom the property was acquired at any other address on
the last equalized assessment roll.
   (3) Published the notice of the proposed sale pursuant to Section
6061 of the Government Code in at least one newspaper of general
circulation within the city or county in which the property is
located.
   (4) Posted the notice of the proposed sale in at least three
public places within the city or county in which the property is
located.
   (5) Posted the notice of the proposed sale on the property
proposed to be sold.
   (k) For purposes of this section, "adjusted for inflation" means
the original acquisition price increased to reflect the proportional
increase in the Consumer Price Index for all items for the State of
California, as determined by the United States Bureau of Labor
Statistics, for the period from the date of acquisition to the date
the property is offered for sale.



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.


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