Right Way for Right-of-Way
Eminent domain attorney and Expo Line advocate Bradford B. Kuhn on why the easiest way from Point A to Point B isn’t necessarily a straight line
Published in 2015 Southern California Rising Stars magazine
By Erik Lundegaard on June 3, 2015
Q: You’re the chair of Nossaman’s eminent domain practice. Who do you tend to represent in your cases?
A: A significant chunk is public agencies: LA Metro, San Diego Association of Governments, San Bernardino. I primarily do the right-of-way acquisition component. If you’re building a huge corridor for a new rail line, or a freeway that’s widening, it’s a lot of work to actually acquire the properties for the project.
Q: Are you ever involved in choosing where to put these projects?
A: That’s usually early on in the environmental approval stage. Obviously the footprint can change pretty significantly, or it can be shifted, or the rights you need can be significantly adjusted as you go along. Engineers tend to think linearly: “I’m just going to go straight down this path, and that’s the easiest and simplest way to do it.” But sometimes that means it’s going to cost you a lot of money—both from a property acquisition standpoint and from a litigation standpoint. A lot of times, small shifts and alignment changes can really minimize that exposure.
Q: So from a legal standpoint, the easiest way from point A to point B isn’t necessarily a straight line.
A: Correct. Once that piece is done and the agency gets into the process of acquiring the property, they get appraisals completed and go out and make offers. I will oversee some of that process, just because there’s a lot of procedural obstacles and hurdles you need to jump through. One owner throwing a wrench in the project can shut the whole thing down.
Q: What does this type of work require from you that you didn’t expect before you began it?
A: My early years were much more focused on representing the property owners and the business owners in these situations. Probably 30 percent of my practice is still doing the property-owner side. So I have a good understanding of that perspective. Nobody likes to be forced, essentially, to give up their property, or to suffer the impact. These projects are huge, and they’re typically years and years of construction around your property or your business. It can have real impacts. Some of it’s compensable, some of it’s not. I think it really helps to understand that perspective and find a way to bring parties together.
Q: On your website you have a quote from the Fifth Amendment: “Nor shall property be taken for public use without just compensation.” Is the greater battle these days over the word “just” or over the word “public”?
A: Typically, the fights nowadays are about what’s just compensation. In California, redevelopment agencies were abolished or eliminated over the last few years when Gov. Brown took office.
Q: Redevelopment agencies?
A: Basically arms of local cities or counties that were able to designate an area as a redevelopment area. They essentially acquire property in its current state—
Q: For private business use?
A: Yes. They’d acquire it, and then they’d transfer it with some incentives to a developer. The thought was if they can improve the area, the property tax increment will significantly increase, because property taxes are based on property values. That was the concept, but it was going too far in California. Areas that weren’t blighted, that really didn’t need it, were being designated just so these agencies could recoup additional tax dollars. It ended in California a few years ago.
Q: How did it end?
A: The redevelopment agencies shot themselves in the foot. The way the legislation was passed, Gov. Brown essentially gave them an option to continue in existence. Plan A is we’re going to eliminate you, but plan B is we’re going to allow you to voluntarily reinstitute yourselves if you commit to making a certain payment to the state every year so we can use it to fund our budget shortfall. They challenged the legislation because they didn’t think they should have to pay at all. It went up to the California Supreme Court, which said the Legislature has the power to eliminate redevelopment agencies; but it does not have the power, under some local ordinances, to force those agencies to pay money to the state.
The end result: Plan A is OK, redevelopment agencies can be eliminated; but plan B—that they can essentially reinstitute themselves by making a voluntary payment—does not work. The redevelopment agencies kind of killed themselves that way.
Q: Think of your biggest project: How many acquisitions were involved?
A: I did one recently that had 150 property acquisitions. That was for the San Bernadino Association of Governments. They were building a new bus rapid-transit project down their major commercial corridor—a rapid-bus lane in the middle of the street—and they needed to widen the street on both sides. You’re basically taking the frontage off hundreds of properties that have commercial businesses. From a number standpoint, that’s probably the largest.
The one that’s generating the most buzz right now is the Expo Line, which is a new light rail transit line running from downtown LA to a block or two from the Santa Monica pier. It’s making use of a lot of old, abandoned, or existing rail line, but they’re also putting in new stations; and when you’re talking about a block or two from the Santa Monica pier, you’re talking about very, very expensive property values.
Q: How far along is the Expo Line?
A: The portion from downtown LA to Culver City is open and operational. The portion from Culver City to downtown Santa Monica is pretty significantly far along in construction. We’re wrapping up the last pieces of the property acquisitions right now.
I don’t know if you’re familiar at all with Bergamot Station Arts Center? It’s a nationally renowned art place, and the Expo Line will have a physical station on Bergamot Arts Center. In order to do that, we needed to acquire a portion of the art center. There were a number of business tenants and art galleries that were there that we needed to acquire their properties and relocate their businesses.
One of the tenants was a gentleman named Tom Patchett, who was the original co-creator of the TV show ALF. He’s a very outgoing and charismatic gentleman, but he made a very, very significant claim for his art business—I think well over $10 million to relocate him. I handled the property acquisition, and dealing with the valuation components. We ended up filing a number of legal issues motions and trying to exclude all of his valuation experts. We dealt with all that, and ultimately got a successful decision from the court. A big victory for Expo.
Q: How is valuation ultimately determined?
A: Both sides will typically hire a number of experts—a real estate appraiser, a planning expert, a parking expert—and attorneys figure out ways to make their own expert look good and take down the other side’s expert; then they try to negotiate a deal. If they can’t, you go to trial.
Q: How often do you go to trial?
A: Probably 95 percent of litigation matters settle. With eminent domain, you potentially have a greater percentage of matters that go to trial because liability is not an issue. You’re strictly dealing with valuation components. Is it worth this or this, or is it worth somewhere in between?
Q: Who determines: judge or jury?
A: Usually a jury will determine compensation. From the agency side, it’s a tough position to be in, because there is a dislike of eminent domain. You’re already starting at a disadvantage.
Q: How do you overcome that disadvantage?
A: I try to be sensitive to the issues. I emphasize that we need infrastructure improvements. People are sitting in traffic every single day. It’s a nightmare. Nobody likes to deal with that, and it’s essentially impossible to get these projects going without using eminent domain. I try to portray the picture that the reason we’ve made it this far and a jury’s determining something isn’t because the public agency’s being unreasonable; it’s usually because the property owner is becoming too greedy. At the end of the day—and you can’t necessarily say this—but you, the jury, these are your tax dollars, these are your public monies that are being spent. We’re trying to spend that wisely.
Q: Interesting. Has anyone on the other side ever asked for a change of venue because the jury has an economic interest in the outcome?
A: It happens very rarely. There are a few exceptions that would allow you to kick it to a different venue. Usually not. I mean, from the other side of the perspective, if you’re the property owner, you are a citizen, you are a taxpayer, and you are essentially one among your peers. You want the people to be able to relate to you and understand you.
Q: What generally happens in these cases? Which figure does the jury pick?
A: A typical result when you’re dealing with complex valuation issues is the jury throws their hands in the air and splits the baby.
Is this stuff boring you yet? I’ve looked at some of your other interviews and I’m like, “Oh man, I’m going to be boring.” And I know you’re a movie critic, too. I’m thinking, “Oh God, the last five movies I’ve seen have been kids movies.”
Q: Actually, now that you bring up kids movies, I’m curious: Isn’t Up, the Pixar movie about the old man and his house …
Q: You’re the villain in that.
A: We’re the big bad government.
Q: Have your kids seen the movie? “This is what daddy does.”
A: I’m going to portray it in a much better light. Daddy is the one who’s helping build these exciting new transportation projects so you don’t sit in bumper-to-bumper traffic when you want to go to Disneyland.
Q: You’re 34, and a young-looking 34. Has that ever been a hindrance?
A: All the time. And I don’t blame people. If I was hiring an attorney to handle a big case or something really important to me, I’d want somebody that has years and years of experience, and has the gray hairs.
Q: How do you overcome it?
A: In years past, I would try to formulate and sell a team around me, and make sure that if I’m [meeting a potential client], I bring a colleague along so there’s at least more of a comfort factor. There’s somebody with me that has the gray hair, the years of experience. Now I’m more comfortable in my own skin, I guess. I have the experience now; I think my reputation speaks for itself.
Q: What drew you to the law?
A: My father was an attorney. He did plaintiff’s personal injury work. I worked at his law firm growing up: doing little stuff like filing and storage down in the basement. Then [in law school] I started handling discovery for him and updating all his practice guides. It just drew me in.
Q: Did he give you any advice about going into law?
A: Yes: “Don’t do it.”
A: He was a solo practitioner but he had a relatively decent-sized office to support. I think it was a lot of stress and pressure on him. But now he’s a full-time mediator at Judicate West, and he completely loves it.
Q: When do they cut the ribbon for Expo Line?
A: Sometime in the next year.
Q: Will you be there?
A: I will. I don’t know if I fall into the technical category of the millennial or not, but I think more and more people are going to be looking for transit options other than cars. I’m all for it if I can make it work in a way that saves me time.
This interview has been edited and condensed.
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