City of Lincoln v. Barringer

Opinion

SIMS, Acting P. J.

Plaintiff City of Lincoln (the City) initially sought to acquire by eminent domain (Code Civ. Proc., § 1230.010 et seq.

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) a portion (Partial Take) of property owned by defendants Donald L. Barringer and Carol S. Barringer (the Barringers).

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While the eminent domain action was pending, the City adopted a new resolution of necessity and amended its eminent domain complaint, seeking to acquire the remainder of the Barringers’ property interests (Remainder or Remainder Parcel) as a “remnant”

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(§ 1240.410), in addition to the original Partial Take, such that the City sought to acquire the entire Barringer ownership. The trial court dismissed the eminent domain action as to the Barringers, determining (1) the City failed to give adequate notice of the public hearing; (2) the Remainder of the Barringers’ property was not a “remnant” subject to acquisition along with the Partial Take; and (3) the City abandoned its initial action to condemn only the Partial Take.

On appeal, the City does not challenge the trial court’s rejection of its “remnant” theory and does not seek the entire Barringer ownership.

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Instead, the City argues it gave adequate notice; it did not abandon • its initial condemnation action for the Partial Take; and the court should have

conditionally

dismissed the action to allow the City to cure any defects and proceed on the Partial Take.

The City also seeks reversal of the trial court’s order awarding litigation expenses to the Barringers, and an order to show cause (OSC) re contempt (stayed pending appeal) for disobeying the court order and failing to deposit the litigation expenses immediately.

The Barringers cross-appeal from the trial court’s determination that there was no gross abuse of discretion by the City that would invalidate the resolutions.