The next hearing on Town of Apple Valley vs. Liberty Utilities (Case No.: CIVDS1600180) is set for 10:00 a.m. at San Bernardino Justice Center (247 West Third Street, San Bernardino, CA, 92415) and should last until noon.
The Town’s objections are as hard to read as was their closing brief. From my humble perspective — and I apologize if you already know this — the Town is trying to treat the eminent domain action like a writ of mandate. A writ of mandate is the opportunity for a person or entity to challenge the decision of a public entity saying it is wrong based upon the “administrative record” and that is all of the documents, the testimony at any public hearing and all of “stuff” that led up to the decision. If the Town wins, it gets a do-over … that is the “the remand” or sending things back to the Town Council.
Eminent domain law is an entirely different body of law, and gives to the neutral party (the judge in this case) the power to decide the case. What neither should be nor is allowed by law is for the decision to be made by a self-interested public entity. Thus, the Town’s legal team from BB&K claims that judge engaged in a “perversion of the law,” but instead it seems that it is the Town that is engaging in a perversion of the law in trying to remove the constitutional protections of the Fifth amendment that do not allow government taking of private property without compensation and due process.
Some of their citations are improper and do not follow if you refer back to the Tentative Statement of Decision. It seems the Town is rearguing the decision on their motion of October 31, 2018, and not the trial decision.
The Town argues that Liberty should not have been able to produce its evidence because it did not own the system at the time of the Resolution of Necessity (RON). Wow! That is novel! Read the reply as it is effectively handled.
The other issues are so jumbled it was difficult to follow, like a stream of consciousness flow of words, whatever idea pooped, I mean popped, into the writer’s head was put on paper.
Then take a look at the reply; well organized and to the point. You judge the rest.
When you go to the courthouse, you will pass through security. If you have a vaccination card, show it and you will not need to wear a mask, but keep one with you just in case. I would take a copy of these papers to show the hearing information but also note, you are an interested party because you are a resident, ratepayer, and taxpayer and this outcome affects you (in case anyone asks).
Diana J. Carloni
Attorney at Law