Burbank-Glendale-Pasadena Airport Authority v. Hensler

BURBANK-GLENDALE-PASADENA AIRPORT AUTHORITY, Plaintiff and Respondent, v. ROBERT R. HENSLER, Defendant and Appellant.
No. B125401 (Los Angeles County Super. Ct. No. BC087103) California Court of Appeal Second Appellate District Division Three Filed September 22, 2000
ORDER MODIFYING OPINION AND DENYING REHEARING [CHANGE IN JUDGMENT]
CERTIFIED FOR PARTIAL PUBLICATION
THE COURT:
        It is ordered that the opinion filed herein on August 30, 2000 be modified as follows:
        1. On page 31, lines 15 and 16, the following sentence should be deleted:

"Part of Hensler's property lay in the path of the proposed taxiway extension."

        2. On page 32, the first sentence of the final paragraph beginning "In a September 18, 1989, resolution, the Airport Authority Commission" should be modified to read:

        In a September 18, 1989, resolution, the Airport Authority Commission declared the necessity of condemning Hensler's property, part of which lay in the path of the proposed taxiway extension and proposed service road.

The remainder of the paragraph remains unchanged.

        3. On page 173, after the paragraph that concludes "we reject this claim on appeal[]" and before the paragraph that begins "Hensler correctly notes" a new paragraph should be added as follows:

        Hensler argues that his failure to appear at the hearing on the resolution of necessity did not waive his right to challenge the necessity of the taking, and that the trial court erroneously found waiver based on People ex rel Dept. of Transportation v. Cole, supra, 7 Cal.App.4th 1281. It is undisputed that Hensler received notice of the July 19, 1993, hearing on the necessity of condemnation, that Hensler through his attorney advised that he would attend, and that Hensler then failed to appear. These facts make an even stronger case for applying the waiver rule than the facts before the Cole court. In Cole the public agency seeking to condemn property gave notice to the defendants that at the hearing on the resolution of necessity, defendants had the right to challenge whether the public agency made a Government Code section 7267.2 offer to them. Cole found that defendants' failure to appear waived their challenge to that Government Code requirement. Here Hensler stated his intention to appear to challenge the necessity of the condemnation. Under the rationale of Cole, supra, at p. 1286, his failure to appear waived subsequent challenge to the resolution of necessity.

        4. The disposition4 is modified to read:

        The judgment is affirmed. The court orders the parties to bear their own costs on appeal.

        This modification changes the judgment.
        Appellant's petition for rehearing is denied.



1        See Daily Appellate Report of September 1, 2000, page 9687, column 2, lines 6-7, third full paragraph.

2        See Daily Appellate Report of September 1, 2000, page 9687, column 2, first sentence, third full paragraph.

3        See Daily Appellate Report of September 1, 2000, page 9690, column 2, lines 4-5, last full paragraph.

4        See Daily Appellate Report of September 1, 2000, page 9691, column 1, last full paragraph.