The Eminent Domain Law’s procedure for allowing condemning authorities to perform pre-condemnation testing of property meets state and federal constitutional requirements so long as it is reformed to allow jury determination of the property owner’s damages from the testing. Code of Civil Procedure 1245.010 et seq. set out a procedure for condemning entities to apply to a court for an order authorizing pre-condemnation testing of the property. This decision holds that these statutes are consistent with the Fifth Amendment of the US Constitution and the corresponding provisions of the California Constitution so long as the statute is amended to allow jury determination of damages the property owner suffers as a result of the testing. The statute provides for deposit of the sums to pay the damage that the court deems it likely that the property owner will suffer. It requires the condemning entity to obtain a court order allowing specific testing procedures. And it allows the property owner to sue for damages suffered as a result. These procedures, with the addition of a right to a jury trial, suffice under the state and federal constitutions.
California Supreme Court (Cantil-Sakauye, C.J.; Liu, J., concurring); July 21, 2016; 2016 WL 3924221