Vacations - Easements, Reserves, Streets, Walkways - 1979-1981 pt1

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354 EAST BAY MUN. UTILITY DIST. V. RICHMOND REDEVELOPMENT AGENCY 93 Ca1.App.3d 346, Cal.Rptr. — compelled by the federal and state Constitutions. Section 33391 is merely a provision empowering a redevelopment: agency to exercise the power of eminent domain without which the power could not be exercised.' [Citations.] The same is true of section 33395 authorizing the agency to acquire by eminent domain property already devoted to a public use: In granting a public agency the power of eminent domain, the Legislature may prescribe the kinds of property that may be taken as well as the purpose for which property may be condemned. [Citation.] Conferral of the power of eminent domain, however, does not mean the power must be invoked or compensation must be paid where the agency's action does not result in a constitutionally compensable taking or damaging of proper- ' ty.... The city's action did not impose on the utility a burden it had not already assumed when it accepted the franchise by constructing its facilities in public streets. [Citation.] Thus, the required relocation cannot form the basis for an action in inverse condemnation...." (Pp. 963-964, italics added.) By denying compensation to the utility on the broad provisions of the Community Redevelopment Law, the court pointed out in Pacific Tel. & Tel. Co. that when the Legislature intended that a utility be reimbursed for its relocation cost, it said so in specific and direct language. The court cited as 'an example the Marin County Flood Control and Water Conservation District Act, which specifically prescribed that the district shall " ` "in addition to the damage for the taking, injury, or destruction of property, also pay the cost of removal, reconstruction or relocation of any structure, railways, mains, pipes, conduits, wires, cable, poles, of any public utility which is required to be moved to a new location...." (Slats. 1953, ch. 666, p. 1915, 1919; ... )' " (Id., at p. 965) Similarly, the _ Legislature has expressly provided for reimbursement of relocation costs 4: of utility facilities maintained in freeways (Sts. & Hy. Code, §§ 702, 703), relocations required by the Southern California Rapid Transit District (Pub. Util. Code, § 30631) and relocations required by the Reclamation Board in connection with certain flood control projects (Wat. Code, § 8617.5). East Bay Muni. Utility Dist. v. Richmond Redevelopment Agency, supra, 51 Ca1.App.3d 789, upon which respondent primarily relies, is not _ . controlling in the case at bench for several reasons.3 One, the language 3We must, in all fairness to the distinguished trial judge, point out that this case did appear to be "controlling." Only after the instant appeal was filed was the cited decision rejected in Pacific Tel. & Tel. Co., supra, 75 Ca1.App.3d 957, and City of San Pablo v. East Bav :Nun. Utility Dist. (1977) 75 Ca1.App.3d 609 [142 Cal.Rptr. 2561, infra. [May 1979]