Subscribe to RSS Feed Subscribe to Comments RSS Feed Subscribe ATOM Feed

CALIFORNIA EMINENT DOMAIN LAW BLOG

California Eminent Domain Project News: Initial Segment of High Speed Rail Reduced by 8 Miles

A settlement agreement between the City of Bakersfield and California High Speed Rail Authority (“CHSRA”) has resulted in an eight mile reduction of the initial 130-mile segment of the high speed rail in part of the Central Valley.

Last December, CHSRA and the City of Bakersfield settled a lawsuit brought by Bakersfield city officials concerning the proposed route for the high speed rail running through the city. The 8-mile cut to which CHSRA and the City agreed will cause the rail to stop north of the City of Shafter instead of stopping at the outskirts of Bakersfield. CHSRA spokeswoman, Lisa Marie Alley, stated that the results of the settlement agreement will not cause a construction delay.

The settlement agreement also provides that the city and CHSRA will meet with local business owners, farmers and other stakeholders to consider new routes for the northern part of Bakersfield before the rail connects to the downtown high speed rail station. The deadline to reach an agreement for the new alignment is January 2016 (a date which cannot be extended unless both the city and CHSRA agree to an extension).

Residents and city officials in Bakersfield and Shafter are not the only ones unhappy with proposed high speed rail routes. Cities in California have been voicing their disapproval with certain routes proposed or selected for the high speed rail. Opposition has been on the rise in cities in Southern California as well as the Central Valley. Many of these cities are depending on CEQA in their battle against CHSRA’s selected routes.

Friends of Eel River v. North Coast Railroad Authority – a case currently before the California Supreme Court dealing with federal preemption of the California Environmental Quality Act (CEQA) – could affect the plans for high speed rail. While the case does not directly involve the high speed rail project, because the project could be impacted by the outcome of the case, representatives of the Farm Bureaus in Madera and Merced filed amicus curiae briefs in the case voicing their concerns to the Supreme Court.

Groups like the Farm Bureaus rely on CHSRA compliance with CEQA requirements in order to ensure CHSRA will deliver on the promises made to make up for environmental impacts caused by the construction and operation of the  high speed rail project. CEQA regulations are significantly stricter than federal regulations under the National Environmental Policy Act.  If the California Supreme Court finds that the federal National Environmental Policy Act trumps CEQA, it may allow CHSRA to evade accountability.

CHSRA has asked the Supreme Court for an extension to July 1st in order to file its own amicus brief in the Friends of Eel River v. North Coast Railroad Authority case. Oakland attorney Stuart Flashman, the attorney representing Kings County in a lawsuit against CHSRA, also filed an amicus brief arguing “that a state is not precluded from controlling its own rail project, and in this case, requiring CEQA compliance.”

California Eminent Domain Project News: CHSRA’s Proposed Palmdale to Burbank Routes Get Opposition from Southern California Cities and Residents

Opposition to the California High Speed Rail project is growing as Southern Californians’ concerns appear to be increasing over the proposed routes for the $68 billion bullet train’s Palmdale to Burbank segment. Approximately 300 city officials and residents from various Southern California cities attended California High Speed Rail Authority’s (“CHSRA”) Board meeting on Tuesday in downtown Los Angeles to voice their concerns over proposed alternative routes for the Palmdale to Burbank segment which they believe will be detrimental to their towns.

Prior to the board meeting, Los Angeles County Mayor Michael D. Antonovich, Los Angeles County Supervisor Sheila Kuehl, and Los Angeles City Councilmember Felipe Fuentes sent a letter to CHSRA asking the Authority to recognize the impacts the proposed routes can cause to communities in the path of the bullet train. The trio jointly sent the letter in an effort to urge CHSRA “to expedite the process by which it will be able to remove or put underground alternatives that are causing our communities great concern for their houses, businesses, equestrian facilities, churches, and quality of life.” The officials are hoping that by working with CHSRA, they can find the safest route with the least impact for the community.

The board meeting included an informational presentation on the proposed alternatives for the Palmdale to Burbank Project section and discussed updates on the progress in the corridor. The approximately 300 attendees made clear that they have serious concerns regarding the proposed alternatives.

San Fernando residents and officials, for example, were vocal in their concerns about the impacts the high speed rail will create for their “first city in the Valley.” San Fernando city officials and residents fear that if the high speed rail cuts through the city, it would cause the city to lose as much as $1.3 million a year in tax revenue. Mayor Pro Tem Sylvia Ballin stated that the proposed route through San Fernando is “the worst imaginable plan…It will more than likely bankrupt our city.” The worry is that the bullet train and the 20 foot sound walls it will require will cause the city to be cut in half. Even though San Fernando has been divided by train tracks for quite some time, the high speed rail would also reduce the number of crossing points across the tracks from four to two. Many San Fernando residents are concerned about these traffic changes and potential loss of businesses.

Other alternatives proposed by CHSRA for the Palmdale to Burbank section include three routes all involving tunneling under the Angeles National Forest. Environmentalists, equestrians, residents and activists are concerned with the environmental impact these alternatives would cause to the surrounding area. Environmentalists, for example, are concerned that running the high speed rail through the Angeles National Forest may result in pollution and endangerment of the San Fernando Groundwater Basin’s water supply. Equestrians in the area fear that the high speed rail could spook horses, disrupt wildlife and put an end to rural living in the area. Formal environmental reviews of the proposed routes have not yet begun. A draft environmental study is expected next summer and the final report is to be completed by December 2017.

Ultimately, CHSRA made no decisions at the meeting. Presumably, they will take into account the various concerns expressed, and move forward from here as they see fit. What is clear from the concerns expressed is that there is no alternative on the table at this point that satisfies everyone – nor is there likely to be.

 

Rebirth of Redevelopment in California: Impairing Private Property Rights or Revitalization?

In a 63-13 vote, Assembly Bill 2, authored by Assemblyman Luis Alejo, D-Salinas, passed in the California State Assembly last week. The bill allows for so-called “Community Revitalization Investment Authorities” – essentially redevelopment agencies with a different title – to acquire private property through eminent domain and make it available to big developers with the intent to build grand-scale housing or commercial and retail centers.

Back in 2011, Gov. Jerry Brown shut down redevelopment agencies as part of an attempt to balance the state budget. Now, the rebirth of redevelopment agencies puts many private property advocates in fear of Kelo-style outcomes where big developers and big investing companies back out of the redevelopment plan leaving acres of land vacant and the city in debt.

Howard Ahmanson, Jr., a private property advocate, cautioned that the bill “brings back the right of governments to exercise eminent domain against some private parties in order to resell their property to other private parties.”

Alejo’s reasoning for the rebirth of redevelopment differs greatly from those who oppose it. Alejo argues that the bill is a stepping stone towards revitalization for blighted, lower income neighborhoods where development is needed. He states that when a Community Revitalization Investment Authority is created by a city, county or special district, certain prerequisite conditions must be met. First, redevelopment plans must focus on high unemployment, low income and high crime rate areas. Additionally, one of the following four criteria must also be met:

  • Unemployment is at least 3% higher that statewide median unemployment rate
  • Crime rate is 5% higher than statewide median crime rate
  • Deteriorated or inadequate infrastructures like streets, sidewalks, water supply, sewer treatment or processing, and parks
  • Deteriorated commercial or residential structures

While this may look good on its face to some, Ahmanson argues – and we believe rightly so – that the property rights for the lower middle class and poor would be infringed while “only new and wealthy suburbs would be potentially spared from ‘redevelopment.’”

Assemblywoman Melissa Melendez, R-Lake Elsinore, agrees. As one of the 13 voters against the bill she believes that while she understands her colleagues’ interest in redevelopment as an effort to counter blighted neighborhoods, she refuses to support legislation that trumps private property rights.

Alejo is persistent in arguing that the bill is needed for disadvantaged communities. Opponents argue that although disadvantaged neighborhoods need to combat such issues as blight (deteriorated residential and commercial areas), there are other avenues the State can take in order to achieve revitalization. The question is whether it is necessary to use eminent domain and leave open the possibility of eminent domain abuse.

California High Speed Rail Project: Relocation Considerations for Displaced Businesses, Farms and Non-Profits

The California High Speed Rail project has been slowly, but surely, picking up its pace of property acquisition in the Central Valley. So far, the State Public Works Board has adopted 192 resolutions of necessity declaring the CHSRA’s intent to file eminent domain actions in court to acquire properties.  Last month alone, CHSRA approved resolutions of necessity for 16 more parcels and approval was pending for 14 more parcels. This month, the State Public Works Board considered the adoption of resolutions for 23 more parcels.

Although CHSRA has a long way to go in acquiring the bulk of the land it requires in the Central Valley, many Central Valley residents and businesses are currently facing acquisition and relocation, and are entitled to seek compensation for both. For acquisition of commercial property, including farms and nonprofit organizations, owners may be challenged with relocating their businesses, including equipment and personal property connected to the functionality of the business.

In an effort to aid in the process of relocation CHSRA has created two programs for businesses, farms and nonprofit organizations. The first program, the Relocation Advisory Assistance Program, is to aid commercial property owners in finding suitable replacements for their property. The second program, the Relocation Payments Program, is intended to aid in getting commercial property owners reimbursement for certain costs such as moving and related expenses, reestablishment expenses, and in lieu payments.

The relocation program may pay for actual reasonable moving expenses and related expenses, with limitations, that can include:

  • transportation of personal property
  • packing and unpacking
  • disconnecting and reconnecting personal property related to the operation of the business
  • temporary storage
  • expenses related to finding a replacement location
  • license, permits and fees required for the replacement location
  • some professional services used in the relocation process

However, difficulties can arise for commercial business owners who have equipment or other personal property which is complicated or impossible to either move or replace. In a recent article in Right of Way magazine, relocation expert Darryl Root explained the importance of understanding the regulatory authority of the Code of Federal Regulation part 24 which governs Uniform Relocation Assistance and Real Property Acquisition programs. CRF §24.301(g)(3) reads:

Eligible actual moving expenses. Disconnecting, dismantling, removing, reassembling, and reinstalling relocated household appliances and other personal property. For businesses, farms or nonprofit organizations this includes machinery, equipment, substitute personal property, and connections to utilities available within the building; it also includes modifications to the personal property, including those mandated by Federal, State or local law, code or ordinance, necessary to adapt it to the replacement structure, the replacement site, or the utilities at the replacement site, and modifications necessary to adapt the utilities at the replacement site to the personal property.

Root emphasizes that relocation professionals should be attentive to appraisals that include the value of equipment or other personal property as part of the real property. Some personal property, however, does not add overall value to real property and it may be a disservice to the business owner to include the personal property as part of the real estate value. It should be noted that this may not apply to properties where the highest and best use of that property is the existing business. In these situations Root states that the fair market value of the property may properly include the personal property as part of the real property. Therefore, if the displaced business sells its property to the displacing agency with the determination that the highest and best use of the property is the existing business, and personal property is included as part of the real property appraisal, then some relocation payments may not require to be paid to the displacee.

Root suggests that it is important to speak to a relocation professional to understand all of the consequences, regulations and financial impacts of relocating a business and personal property related to the operation of the business. We’ll take it a step further. The various items of compensation to which property or business owners are entitled in acquisitions under threat of eminent domain are complex and interrelated. It is a potential minefield, and trying to deal with CHSRA (or any other government agency threatening eminent domain for that matter) without full knowledge and understanding of the laws and regulations governing such acquisitions can put owners in the position of potentially leaving tens of thousands an even hundreds of thousands of dollars on the table. At California Eminent Domain Law Group, we are experts in understanding these laws and regulations, and putting them to work for owners rather than against them, to maximize the overall compensation to which property and business owners are entitled. We can be reached for a free initial consultation at (559) 697-6779, or see our website at www.caledlaw.com.

California Eminent Domain Project News: CHSRA Updates State Legislature on the Bullet Train Project

California High-Speed RailThis week, the California High Speed Rail Authority issued its biannual Project Update Report to the State Legislature.  The report provides a synopsis of the Authority’s funding, environmental review, land acquisition (eminent domain), and construction activities for the California High Speed Rail Project.  

 

Of note, the Authority advises that the Project’s first operating segment is scheduled to commence operations in 2022 (from Madera to the San Fernando Valley/Burbank), and full operations between San Francisco and Los Angeles are scheduled to start in 2029.  In the report the Authority acknowledges that several risks and challenges remain, but describes efforts to manage and mitigate any risks.

 

Recognizing that its schedule has been delayed because of the slow pace of property acquisitions, the Authority contends that the pace should move quicker now because, “the majority of the learning curve and teething issues have been worked through . . .”  For the initial construction segments of the Merced to Fresno Section (Construction Packages 1A and 1B), the Authority reports that as of March 1, 2015 they’ve acquired 105 of necessary parcels (28%), and that Resolutions of Necessity have been adopted for another 118 parcels (authorizing the filing of eminent domain lawsuits).  And, of the 141 parcels required for Construction Package 1C, the Authority has made initial written offers to 112 of these parcels.  The Authority also notes that Caltrans has also begun acquisition for the related Highway 99 Realignment Project between Ashlan Avenue to Clinton Avenue.

 

The Authority advises that some initial construction work, including utility relocations and demolition of existing structures, has begun on CP1A and 1B.  However, the Authority reports that while design for these segments is progressing (with the contractor completing 60% – 90% design plans), major construction activities have been delayed because of the slow pace of property acquisition.

 

For the next phase of construction, the Fresno to Bakersfield Section, the Authority reports that it is proceeding with Construction Package 2 – 3 after obtaining the necessary environmental approvals.  This is an approximately 65 mile section beginning at American Avenue in Fresno traveling southerly toward the Tulare-Kern County line.  The Authority has identified 545 parcels for acquisition in Construction Package 2-3, and advises that nearly 500 parcels have been appraised.  With the appraisals complete, the Authority expects to proceed with making offers and seeking acquisition of the necessary parcels.

 

After many years of planning, debate and litigation, construction of the California High Speed Rail Project is now moving forward.  In Fresno and beyond, many property and business owners in High Speed Rail’s path are relying on the attorneys at California Eminent Domain Law Group to ensure they are paid maximum compensation.

California Eminent Domain Project News: Crenshaw/LAX Transit Project, Updates and Current Issues

Construction of the Crenshaw/LAX green line has been underway for many months now. The project is planned to connect the north-south Crenshaw Line and the east-west Green Line into a monorail system that extends towards the LAX.  This 8.5 mile light-rail line will include 8 stations between the Expo Line on Exposition Boulevard and the Metro Green Line with both aerial and below-grade segments.

The construction, however, has been creating issues for merchants along Crenshaw. Recent street closures and blocked sidewalks have made it difficult for patrons and clients to get to some of the businesses. Shop owners had concerns regarding the gradual decline of regular patrons and the outcome it would have during the holiday season. Los Angeles County Metropolitan Transportation Agency has agreed to give shop owners who qualify up to $50,000 each year until the work, which has compromised their business, is done. However, that money is not available until this upcoming year.

For frequent updates on the Crenshaw/LAX Transit Project, and other California projects, visit our blog and look for “California Eminent Domain Project News” for the latest information. Also Like us on Facebook and follow us on Twitter.

California Eminent Domain Project News: California High Speed Rail Settles Lawsuit with Bakersfield

Last month, the U.S. Surface Transportation Board held that the California Environmental Quality Act, or CEQA, is pre-empted by federal environmental law relative to the Fresno-Bakersfield route of the proposed high speed rail.

STB stated in their opinion that CEQA could delay or eliminate a rail project even after a federal board, such as the STB, has authorized the project. This decision expressly pre-empts any state law from attempting to regulate the rail construction project. This means that a California state court cannot issue injunctions to stop the high-speed rail projects filed under CEQA.

The decision led to a recent settlement between California High Speed Rail Authority (CHSRA) and the City of Bakersfield. The City of Bakersfield had filed the lawsuit in June challenging CHSRA’s Final Environmental Impact Report/Environmental Impact Statement, stating that the CHSRA violated CEQA. According to CHSRA’s Jeff Morales, the settlement was a representation of the Authority’s continuous effort to “resolve issues in a constructive manner.” The ultimate goal for CHSRA is to “maximize benefits” while “minimizing the impact.”

The settlement included the dismissal of the city’s lawsuit, CHSRA’s commitment to study a new alignment in Bakersfield and a new location for the Bakersfield station. The new alignment is claimed to decrease the number of houses and businesses affected by the high speed rail project.

Six other lawsuits still remain.  However, the viability of those lawsuits is in doubt.

For frequent updates on the California High Speed Rail project, visit our blog and look for “California Eminent Domain Project News.” You can also stay informed by following us on Twitter and liking us on Facebook.

 

 

Claremonts Ready for Golden State Water System Takeover

In early November of this year, Claremont resident voters backed a measure that gave the city the ability to borrow as much as $135 million dollars to acquire Golden State Water Co., a private water company servicing the City of Claremont. Claremont’s desire to take over the private water company has been at issue since early this year, however, residents have been lobbying for the acquisition for many years now.

More than 11,000 customers of Golden State Water Co. have allegedly been gouged by the company with increasing water rates and higher rates than neighboring communities. Although negotiations between the City and Golden State Water have been ongoing for some time now, no agreement has been reached. The cost for the acquisition has been the subject of significant dispute. Claremont has appraised the water system at $55 million while Golden State Water Co. released a report claiming the value is $222 million. As in any other eminent domain matter, if the parties can’t reach an agreement, the price of the acquisition will be determined by a jury.

The thought of Claremont using its power of eminent domain to acquire the company is not a farfetched idea and seems to be the most likely route for Claremont.  Earlier this month, the city unanimously approved a resolution of necessity to begin eminent domain process and later filed the suit. The City had published two proposals to the issue of rising water cost with respect to Golden State Water Co. The first proposal was to acquire the water system within the city limits. And the second was to acquire the water system outside the city. Per the City, the acquisition of the Claremont system would result in the most benefit for the city residents.

So far the city has invested $1.5 million on consultants and legal fees for the acquisition and has estimated another $2 million in litigation fees to exercise eminent domain. But the most important question is how much will residents save? Claremont claims that if the system is purchased under $80 million it will be able to generate enough revenue to pay for the bond. However, many are skeptical about how much it will actually cost the city to acquire the water system.

In the past, similar acquisitions of water systems have yielded much higher purchasing prices than the original estimates. In a similar acquisition in San Lorenzo Valley Water District, the estimated the price at $5.3 million, it was ultimately acquired for $13.4 million, 250 percent more than the original valuation price. Similarly in Big Bear Lake, the District there estimated the price at $15.7 million, while the final acquisition price ended up being $35 million. Given this history and the parties’ disparate opinions at value, the fear that the actual acquisition price for the Golden State Water Co water system may rise way beyond the $55 million appraisal value is a legitimate concern.

Past acquisitions of private water systems purportedly do show that the city residents did save annually on their water costs. How much the residents of Claremont will save, if anything is uncertain. But it seems as if the community of Claremont has come together to voice their discontent with private utilities raising costs. And their devised plan of using eminent domain to remedy the problem will soon come into play.

By: A.J. Hazarabedian

To learn more about A.J. Hazarabedian, the managing partner at California Eminent Domain Law Group, visit http://www.eminentdomainlaw.net/aboutAJH.php

Redevelopment Is Back in California

Back in 2011, Governor Jerry Brown abolished redevelopment agencies in California successfully gaining $1.5 billion of the redevelopment funding to close California’s budget gap. Recently, three bills have reached the Governor’s office in an attempt to revive redevelopment in California. Gov. Brown has signed two of those bills, Senate Bill 628 and Assembly Bill 229, into law while vetoing Assembly Bill 2280.

SB 628 will create what redevelopment revivalists call Enhanced Infrastructure Financing Districts, which essentially is redevelopment on a bigger scale, without protections. Old redevelopment law required a city to deem a certain area as blighted, meaning inhabiting the area would be dangerous and against public safety. The new law under SB 628 does not require a finding of blight. Opponents to the bill argue that the new law will make eminent domain abuse much easier to get away with. EIFD also will change the threshold for voter approval from two-thirds to only 55%, a lowered threshold from standard infrastructure finance districts. Furthermore, opponents fear that the new law will give city officials the right to take private property from downtown areas which will decrease or eliminate low-income housing. The new law, unlike the standard IFD, does not require cities to set aside funding for low-income housing.

AB 229 is another form of redevelopment law that targets the revitalization of old military bases. Known as the Infrastructure and Revitalization Financing District (IRFD), this bill can issue 30 years of debt with a 2/3 voter approval in the district. Opponents argue that the IRFD is granting city officials great power over private property, unrestricted power of eminent domain and the ability to fund private party projects with state tax money.

The only bill vetoed by Brown was AB 2280. This bill, known as Community Revitalization and Investment Authority (CRIA), would allow local governments to create CRIA in areas of the city facing disadvantages for funding community specified activities. It would also have revived tax-increment financing which sets aside 25% for affordable, low-income housing. Brown’s veto message stated that, if approved, the bill would “unnecessarily vest this new program in redevelopment law.” However, he did also mention his desire to work with the bill writers to come to a possible consensus on tax-increment financing for disadvantage areas.

Regardless of opposition, redevelopment appears to be back with little or no restrictions on the power to take private property by city and state officials. When the passed bills were showcased, their focus was funding for upgrading roads, sewer pipes, and levees. But it will be interesting to see how far the new law will stretch the definition of “infrastructure.”

 

By: A.J. Hazarabedian

To learn more about A.J. Hazarabedian, the managing partner at California Eminent Domain Law Group, visit http://www.eminentdomainlaw.net/aboutAJH.php

Studio City Residents and Community Groups Seek to Stop Property Owner’s Redevelopment Plains: Open Space vs. Condos

Open Space vs. Condos

Proposed development of a portion of the privately-owned 17 acre Weddington Golf and Tennis, located on the banks of the Los Angeles River in Studio City, is a hot topic of debate between Studio City residents and the Weddington owners. The public golf and tennis facilities have been a neighborhood gem for many years providing rare open space within the densely developed neighborhood.

In 2008, the Weddingtons submitted a development proposal to the City of Los Angeles for a 200-unit senior housing condominium complex where the tennis courts are presently located. The proposed development would include six four-story buildings and 635 parking spaces. In July, a Draft Environmental Impact Report for the Project was issued for review and comment. Currently, the Weddingtons are preparing for the development by lobbying for necessary development approvals, including a requested change in zoning from agricultural to multi-family residential.

While the Weddingtons seek to develop part of their property, and generate income, local residents want the property to remain as open space.

This debate brings to light the often conflicting interests of the public and a private property owner.

The Community’s Perspective

The surrounding community would prefer that the Weddington Golf & Tennis facilities remain as open space available to the public. Although it is private property, opponents of development argue Weddington Golf & Tennis is a community amenity similar to public parks and designated open spaces. As it has been there for many years, the property has become an established community fixture. Now, the community has a vested interest in its future and views the property as a key feature of the community.

Because the property has become like a public park, some argue that the simple answer is for the City to simply purchase it and permanently establish it as a public park.  This, however, would come at a substantial cost: Councilman Paul Krekorian, who represents the area and is opposed to the project, has attempted to find funding for the City to buy the land from the Weddingtons, possibly resorting to the use of eminent domain. So far, his attempts to secure the $20 to $30 million necessary to purchase the land have failed. Unless the Weddingtons are willing to donate the land, or accept a steep discount, this scenario does not appear likely.

Since the community is opposed to development of the site, can the City simply prevent the Weddingtons from building 200 condominiums on their private property? To answer briefly, possibly. However, the explanation is multi-faceted and the line between government’s reasonable regulation of private land use (called the “police power”) and government’s regulation effectively taking private property (“eminent domain”) is not always clear.

Because development of the Weddington’s private property requires development approvals, the City does have the ability to deny outright, or limit, the Weddingtons proposal for the condominiums. There is an established development process that the City and Weddington are following, including a public review and consideration of the proposed Project. This process allows the community to voice its concerns about the Project and its potential impacts. As long as the process is followed, the City’s ultimate determination – granting or denying development approvals – would probably be technically legally valid.

As a property owner, though, the Weddingtons are permitted to use their property in an economically viable manner– including potentially the right to change the use of their property. What are the incentives for the City to stop the Weddingtons from developing their property as proposed? The public’s dissatisfaction with the Project may influence City officials to side for open space and preserve access to the LA River.  The Weddingtons, however, would probably be entitled to develop their property to some extent – which would probably result in the elimination of some of the existing recreational facilities.

Studio City Residents Association and Save LA River Open Space have submitted their own development impact report to the City outlining impacts of the Project, one of which is the destruction of what they characterize as “rare, irreplaceable open space.” Their intentions are to keep the area open and convert it to the Los Angeles River Natural Park which would include the existing tennis courts and golf course.

The Property Owner’s Point of View 

The Weddington’s have the right to use their private property in an economically viable way. The fact that they have opened their property to the public for many years, and provided an important recreational facility to the community, does not negate their rights as private property owners. One of the most important elements of American society is the concept of strong private property rights and a mechanism for upholding those rights.

Economist Armen A. Alchian does not differentiate between property rights and human rights stating “property rights are human rights.” Private property rights are protected under the Fifth Amendment of the Federal Constitution, “…nor shall private property be taken for public use, without just compensation” and Article 1, Section 19 of the California Constitution, “Private property may be taken or damaged for a public use only when just compensation … has first been paid to … the owner.”

Private property rights are often described as a bundle of rights – including the right to exclude others from your property. Another aspect of property rights is the “exclusive authority” to determine how to use that property. However, the phrase “exclusive authority” is subject to the “police powers” of the government. This means that the government can reasonably regulate such things as one’s use of their private property in the interest of the public health and safety. In this situation, the City’s has some discretion regarding the use of the Weddington property under its “police power.”

Many residents say they relied on the open space and recreational facilities of the area – including Weddington Golf & Tennis – when purchasing their homes in the Studio City neighborhood.

Is a homeowner’s reliance enough to trump private property rights? Generally, the answer is no. Should it matter that the Weddington’s property is privately owned and is not permanently committed as open space like a public park? Of course it should. The City must also consider the potential public benefits of development of the property as proposed – including significant property tax revenues.

Is There A Possible Compromise

Absent some form of compromise, or the City’s outright acquisition of the property, only one perspective is likely to win out. Or, is there a win-win solution in which both the interests of the public and the property owner are served? If so, both sides would need to compromise – with some open space being preserved, and some development allowed. This may not be palatable to either side – but often the best compromise is one in which both sides are equally unhappy.

 

By: Glenn L. Block, Esq.
To learn more about Glenn L. Block, partner at California Eminent Domain Law Group, visit

 http://www.eminentdomainlaw.net/aboutGB.php

Next Page »

COPYRIGHT © 2010 Arthur J. Hazarabedian, Esq.