THE PEOPLE ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff and Appellant,
MICHAEL R. MCNAMARA et al., Defendants and Respondents.
Monterey County Superior Court Super. Ct. No. M92076 Honorable Lydia Villarreal
Ronald W. Beals Chief Counsel for the State of California Department of Transportation, David Gossage Deputy Chief Counsel, Lucille Y. Baca Assistant Chief Counsel, Derek S. van Hoften James Morrison Wyman
Heidi A. Timken Timken Johnson LLP, Leslie A. Johnson Timken Johnson LLP, Christopher J. Gonzalez Timken Johnson LLP, Abram P. Petersen, Timken Johnson LLP
Appellant The People ex rel. Department of Transportation (DOT) challenges the trial court’s rulings in an eminent domain action in which DOT took a residential property from respondents Michael and Rosealinda McNamara. DOT contends that the trial court erred in (1) finding that DOT was liable for precondemnation damages, (2) granting judgment notwithstanding the verdict (JNOV) on the amount of precondemnation damages, and (3) awarding litigation expenses to the McNamaras. We conclude that the McNamaras failed to introduce substantial evidence that they were entitled to recover precondemnation damages. Consequently, both the judgment and the award of litigation expenses, which depended on the McNamaras’ entitlement to precondemnation damages, must be reversed.
I. Factual Background
The McNamaras bought a 1.24-acre lot in Prunedale near Highway 101 in 1982. They planted trees along the border of the property to shield the view of the highway in anticipation of building a home on the lot. In 2002, when Michael McNamara was nearing his retirement from the military, they began planning the home they would build on the lot. The McNamaras attended a meeting held by DOT concerning a long-considered freeway bypass project. They learned that the bypass project lacked funding. The McNamaras sent a letter to DOT asking it to keep them apprised of any developments impacting their property.
In December 2002, DOT determined that the Prunedale Improvement Project (PIP) “was the way to go” with respect to improving Highway 101 in the Prunedale area. DOT began the environmental review process for the PIP. In January 2003, DOT sent the McNamaras a letter apprising them that serious funding issues remained regarding the bypass project. The McNamaras proceeded with construction of their new home on the lot, breaking ground in November 2003.
In October 2003, unbeknownst to the McNamaras, DOT held a public meeting about the PIP. Despite the McNamaras’ prior request to be kept apprised, DOT did not notify them of this meeting. The PIP had been designed using a 1999 aerial survey that did not reflect the existence of the McNamaras’ home. The proposed right of way for the PIP bisected the McNamaras’ home. DOT’s December 2003 draft relocation study identified the McNamaras’ property as a “full take.”
The McNamaras moved into their new home in September 2004. The draft environmental impact report (draft EIR) for the PIP circulated in May 2005. The McNamaras first learned of the PIP in 2005. Had they known of the PIP, they would not have built their home.
In August 2005, the McNamaras were notified by DOT of a public hearing put on by DOT about the PIP. DOT had not contacted the McNamaras between January 2003 and August 2005. The McNamaras attended the hearing and learned that the PIP involved the area where their home was sited and understood that their “home was in jeopardy.” Because the aerial survey used to plan the PIP did not show their home, the McNamaras could not see precisely how the project would affect their home. Michael McNamara contacted DOT and asked them to “ ‘save’ ” their home. The person he spoke with at DOT told him “they would see what they could do.” DOT also told him that it would begin acquiring the necessary properties only after the final environmental impact report (final EIR) was approved. Michael McNamara continued to make contact with DOT about the impact of the PIP on his property.
DOT made an attempt to redesign the PIP to avoid the McNamaras’ home. This proposed redesign was “the best [DOT] could do” to avoid the McNamaras’ home. The proposed redesign would have blocked access to the front door of the home during several years of construction and placed the right of way 21 feet from the front door. The roadway itself would have been 50 feet from the front door, and the McNamaras’ driveway would no longer have been usable. Nevertheless, DOT did not disclose these facts to the McNamaras. Instead, DOT told Michael McNamara that it had “minimized the impacts, ” though the project would still be “very much in his front yard.”
The final EIR for the PIP was approved in March 2006. At that point, the decision to build the PIP had been made. The PIP required DOT to acquire roughly 120 parcels. In March 2006, DOT divided these parcels into groups. The first group that it dealt with were the ones it identified as “full takes” and those parcels where the owners had previously made contact with DOT. In September 2006, DOT acquired the McNamaras’ neighbor’s property. The neighbor told Michael McNamara that he had been told that the McNamaras’ property “ ‘is also history.’ ” Michael McNamara immediately contacted DOT. DOT informed him that they were acquiring only full takes at this point, and the McNamaras’ property was not a full take. Michael McNamara understood this to mean that DOT would be taking only the “base” of his property near the frontage road, which would allow them to remain in their home.
In August 2007, DOT sent the McNamaras a “Notice to Appraise” stating that DOT did not “need all” of their property. When the appraiser came out to do the appraisal, Michael McNamara asked him to “have the property staked” so that he could see what the “part take” would look like. ...