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United States v. 12.94 Acres of Land in the County of Solano

December 8, 2009


The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge


This condemnation action is before the court on plaintiff United States of America's ("plaintiff") motion for summary judgment on the ground defendants*fn1 lack admissible evidence sufficient to establish a triable issue of material fact regarding the valuation of the subject property (12.94 acres of land in the County of Solano). In brief, plaintiff argues defendants' appraiser, John Nicolaou ("Nicolaou"), is unqualified to opine on the value of federally condemned property, did not properly analyze accepted methodologies and made critical calculation errors and failed to use appropriate or reliable data, thereby rendering his opinions inadmissible. Plaintiff further contends that Bill Maher ("Maher"), an owner of the property, cannot create a triable issue because his testimony during deposition and declaration submitted on the motion do not offer any valuation opinions.

Contrary to defendants' experts, plaintiff maintains that its experts, appraiser Steve Roach ("Roach") and engineer Kelly Birkes ("Birkes"), have correctly determined just compensation for the property is $295,000.00. Because defendants did not offer any rebuttal expert reports to Roach's and Birkes' reports and because their own experts fail to offer admissible evidence, plaintiff argues it is entitled to judgment in its favor in the amount of $295,000.00.

Defendants oppose the motion, arguing Nicolaou's and Maher's testimony, setting the amount of just compensation at $2,319,000.00, is admissible and sufficient for defendants to withstand summary judgment. Ultimately, defendants contend plaintiff's arguments go to the weight of Nicolaou's and Maher's testimony not its admissibility.

The court heard oral argument on the motion on November 25, 2009. By this order, it now renders its decision, granting plaintiff's motion.


1. Subject Property

The 12.94 acres of condemned land (sometimes referred to herein as the "take parcel") was part of a larger 306.76 acre parcel ("larger parcel") in Solano County, owned by defendant Maher Trust and located next to Travis Air Force Base. (UF #1.) The government is taking the parcel to relocate, redesign and expand the south gate entrance to the base. The new gate area will be constructed and operated on the take parcel and will include multiple lanes for the queuing and inspection of large trucks making deliveries to Travis. (Id.)

The larger parcel has historically been used for agriculture and/or cattle grazing, and the 293.82 remainder parcel is still used for that purpose today. (UF #61.) The property is zoned A-160 Exclusive Agriculture, which requires 160 acres per home lot size. (UF #62.) A 1,344 square foot manufactured home was condemned as part of the take parcel, and the prior tenants were relocated. (Pl.'s Request for Judicial Notice ("RJN"), filed Oct. 13, 2009, #s 1, 7.) The remainder parcel has an old long-abandoned home, two barns and corrals. (RJN #13.)

Numerous private and public restrictions and easements limit the property's legal uses. (UF #63.) Thirty feet of accessible frontage along the property's western boundary exists for the remainder parcel. (UF #2.) To restore access to the barns and the interior of the remainder parcel, a roadway will have to be constructed from the 30 foot access along Peterson Road to the barns. (RDF ¶ 13.) Defendants contend, however, that this new road will be inadequate and unsafe, considering the remainder property is used for ranching activities where large trucks are used to transport cattle, feed, hay and equipment to and from the barns. (RDF ¶s 12, 54.) Defendants assert it will be difficult if not impossible for these large trucks to make the sharp turn necessary to enter and exit the 30 foot driveway. (RDF ¶ 55.)

2. Plaintiff's Efforts to Acquire the Property

After Congress authorized security and force improvements at Travis Air Force Base, the government began a multi-year effort to acquire the 12.94 acres from the Maher Trust. (UF #3.)

Maher, as trustee, was not opposed to the government's acquisition of the 12.94 acres but the parties could not agree on a sales price. (UF #4.) While those negotiations were ongoing, in April 2005, Maher contracted to sell the entire 306.76 acre parcel to Bancor Properties for $2.4 million. (UF #5.) Bancor wanted to subdivide the property, but no zoning change was sought, and Bancor did not complete the purchase. (UF #6.) Maher subsequently entered, on October 6, 2006, another $2.4 million sales contract with his broker, defendant Aksnes, and defendant SGA but escrow has not closed even though the contract was entered three years ago. (UF #s 7, 8.)

3. Procedural History

On October 12, 2007, plaintiff filed a Complaint in Condemnation for the 12.94 acres and deposited the estimated just compensation. (UF #9.) On December 11, 2007, plaintiff was granted immediate possession and title to the 12.94 acres. (UF #11.) Most defendants disclaimed interest in the property. (RJN #7.) The remaining defendants, the Maher Trust, ...

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