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CALIFORNIA EMINENT DOMAIN LAW BLOG

Duh! Traffic stinks. But does anyone really know what to do?: Daily Breeze, 6/29/07

Study ranks California roads among the nation’s worst, so experts offer fixes for clogged roads.

By Sue Doyle and Harrison Sheppard

California’s drivers are stuck in some of the nation’s worst traffic with state highways that are so clogged, poorly paved and costly to maintain that they rank seventh worst in the nation, according to a report set to be released today.

Perhaps coming as little surprise to motorists, the annual highway performance report by the Reason Foundation has consistently found California’s roads among the most miserable in the country.

“There’s lots of traffic, relatively high costs of doing business and increasing truck traffic. And not much room for freeway expansion,” said study author David Hartgen, a retired professor of transportation studies at the University of North Carolina at Charlotte.

And that increasingly desperate need for roomier roadways – in already densely populated areas – is putting growing pressure on communities.

Caltrans wants to widen freeways to the maximum extent possible.

That means six lanes in each direction – like the San Diego (405) Freeway expansion through the Sepulveda Pass under consideration now, said Doug Failing, Caltrans director.

Plans for that project include adding a northbound carpool lane and changing the width of lanes heading south to make room for one more.

But the plans include wiping out up to 37 homes and businesses to make the extra room. And the use of eminent domain in doing so has some concerned.

Opponents say they’re being forced out of their longtime neighborhoods and that adding a lane will only shave a few minutes off commute times.

“If you’re going to do this expansion that will save drivers eight minutes, do you really need to do this?” said the Rev. Janet Bregar of Brentwood Glen’s Village Church, which is slated to be razed for the expansion.

It’s unclear whether the region will see the use of more eminent domain to make room for road expansion, but Failing said it’s always a possibility.

“We’re trying to find ways to use less eminent domain because it is a last resort,” Failing said. “The last thing you want to do is take someone out of their house.”

California has lagged on building roads for years because there was always the hope that people would switch to public transportation.

But that dream has never taken off, said Peter Gordon, professor at the USC School of Policy, Planning and Development.

“It was kind of a dumb idea, and it didn’t work,” Gordon said. “So here we are.”

Although taking 37 homes and businesses seems extreme, it’s far less than what has been done in previous situations.

Thousands of homes and businesses were razed when freeways were first built in the region, said Martin Wachs, director of the Transportation, Space and Technology program at the Rand Corp.

But ensuing community opposition has slowed freeway expansion as politicians and transportation officials are more reluctant to disrupt communities with eminent domain, Wachs said.

Still, he said the trade-off is that the area will see traffic congestion become progressively worse.

“We have to choose between one or the other and increasingly we’re more willing to accept community as the priority,” Wachs said.

“As a consequence, transportation systems get more congested.”

To get Los Angeles moving in the right direction, tolls should be charged for driving on freeways, with prices varying by time of day, said Gordon.

Gordon said such a concept would be a better use of roads and would bring in money to build more.

“We understand early bird specials and pricing that works with demand,” Gordon said.

“But that’s not the way we run our roads, and that’s exactly the problem we’re whining about.

“We created our own mess.”

Even with the use of eminent domain, most transportation experts agree that simply building more lanes will not answer the region’s traffic woes.

In the future, ramp meters on freeways and traffic signals that work together to move blocks of cars will be relied on more to keep people moving.

Failing said the region needs a mass transit system that more people use. And the area needs clusters of housing and jobs around transit stations.

“There’s a whole series of things we need to do,” Failing said. “Just building isn’t going to do it.”

The Daily Breeze: http://www.dailybreeze.com

 

Battle brews over 405 widening project: Los Angeles Times, 6/17/07

By Rong-Gong Lin II

Battle brews over 405 widening projectResidents along the 405 are upset that homes may be lost and sound walls moved unnervingly close. Enter the lawyers.

As Caltrans moves to widen more freeways as part of a multibillion-dollar infrastructure campaign, road planners are facing an early challenge in tony neighborhoods on the Westside and in the San Fernando Valley.

The California Department of Transportation wants to widen lanes on a 10-mile stretch of the 405 Freeway and add a northbound carpool lane through Brentwood, Bel-Air and Sherman Oaks as part of a much-anticipated effort to bring some relief to weary motorists.

The project would fill in the missing link in the San Diego Freeway’s carpool lane system, allowing ride-sharing motorists and buses access to a continuous lane on each side from Orange County through the Westside into the Valley. In February, local officials successfully pressured a state commission to allocate $730 million from a voter-approved bond issue, effectively giving the widening project a green light.

But the project has generated strong opposition from some residents — and created something of a test case as Caltrans embarks on new freeway-widening projects with the help of the bond measure.

The state Transportation Commission decided to provide $2.7 billion for expanding and improving Southern California freeways over the next few years. Besides the 405 project, Caltrans plans to widen the 5 Freeway in the Valley and southeast Los Angeles County. Road widenings are also slated for sections of the 57 and 91 freeways in northern Orange County, parts of the 91 and 215 in Riverside County and portions of the 10 and 215 in San Bernardino County.

Caltrans has bought about 10 homes in the Norwalk area, where the agency plans to replace a freeway overpass and add four lanes along the 5 north of the Orange County line, hoping to end a major traffic bottleneck.

More than 150 homes and more than 150 businesses would have to be acquired.

But the 405 widening has captured the most attention, in part because it affects wealthy neighborhoods where residents have the means to put up a good fight.

At issue is whether improving traffic flow is worth altering neighborhoods — by razing some homes and moving freeway sound walls closer to others.

“As we begin to enlarge our transportation capacity, that’s going to mean widening, maybe even double-decking. It’s going to mean a lot of things that people living near freeways aren’t going to like,” said David Fleming, a member of the Metropolitan Transportation Authority board and chairman of the board of the Los Angeles Area Chamber of Commerce.

If freeways aren’t widened, congestion will only worsen, said Ron Kosinski, Caltrans’ deputy district director for environmental planning in L.A. County.

“The reality in Southern California is we’ve been behind for many years on adding new lanes to freeways — and that hasn’t deterred people from driving or more people from coming to Southern California,” Kosinski said.

Without widening, traffic on the 405 Freeway, described as one of the worst in the nation, is forecast to increase 46% from 2005 to 2031.

Caltrans has not determined how many homes it will try to buy or take through eminent domain, and it is seeking public comment through late August on two options it has proposed in a draft environmental impact report.

One choice, costing about $649 million, would be to widen lanes on the northbound 405 and add the northbound carpool lane, requiring Caltrans to acquire fewer than 10 residential properties and portions of about 40.

The other option, about $911 million, would also add a regular southbound lane and widen all southbound lanes, but Caltrans says it would have to acquire an additional 30 residences. There is already a southbound carpool lane.

Some residents are hiring lawyers to fight any efforts to forcibly take their land.

“It’s going to be a nightmare. There must be a way to resolve this without such a devastating impact on the neighborhood,” said Jason D. Kogan, a member of the Brentwood Glen Assn. board.

Some residents say they don’t oppose adding the carpool lane, but find fault with widening lanes from 11 feet to 12 feet to conform to federal safety standards.

Caltrans found that the southbound 405 through the Sepulveda Pass has a higher rate of accidents than the statewide average.

But some officials say the needs of motorists should outweigh the needs of residents along the freeways.

“Let’s face it, you’re talking about a handful of people [versus] literally millions of motorists,” Fleming said. “In balancing the equities, it’s too bad that homes are being taken … [but] we have got to do something about this traffic congestion, because it affects so many people.”

Southern California transportation officials say that widening freeways and adding carpool lanes are critical to unclogging notoriously congested freeways.

More than 60% of voters in 2006 approved Proposition 1B, a $19.9-billion highway and mass transit bond measure that Gov. Arnold Schwarzenegger championed as critical for the state’s future.

Without freeway widening, officials fear, congestion will reach intolerable levels.

But some people who live next to the 405 say the cost of unfettered freeway expansion will tear apart tightly knit communities, and they fear the worst. Under one plan, Brentwood Glen, for instance, might lose a 60-year-old church, which also serves as a synagogue and neighborhood meeting place.

“It’s horrible. What will happen to our quality of life? The entire neighborhood will be destroyed,” Anita Johnson, a resident of Brentwood Glen, said recently while walking her two dogs, Yote and Zoe.

In Sherman Oaks, Wayne Williams worried about increased noise and street traffic should Caltrans begin tearing down homes just east of his residence.

“When is it going to be enough? Whose home is it going to be next?” said Williams, who prefers that Caltrans keep his neighborhood whole.

Other residents are upset that the freeway might creep closer to their homes and onto their property.

Some fear the prospect of sound walls being moved into their front lawns, backyards or even driveways.

“The wall would be a matter of feet away from our bedroom, dining room and kitchen,” said Joy Bergin, who lives in a Spanish-style home built in the 1920s.

At her neighbor’s house, the new freeway wall would be a few feet from the nursery of 5-month-old Adam Donaty.

“If there’s an accident two feet from my house, where’s the car going to go?” askeJohn Donaty, Adam’s father, who lives on Sherman Oaks Circle. “I’m sweating here.”

Los Angeles Times: http://latimes.com

For Eminent Domain, A Shifting Landscape: The Day, 6/23/07

By Elaine Stoll

Fort Trumbell peninsula

New London — Two years to the day since the U.S. Supreme Court upheld New London’s use of eminent domain at Fort Trumbull, the neighborhood’s last residents have left and the economic development project that displaced them is moving ahead.

Susette Kelo, lead plaintiff in the lawsuit Kelo v. City of New London, became the last to turn over possession of her former property last week.

But though they have left the peninsula, the eminent-domain plaintiffs have also left a legacy that is overhauling state eminent-domain laws around the country.

On June 23, 2005, the Supreme Court upheld a government’s right to take private property to make way for private economic development promising public benefit.

The ruling settled the legal issue at the peninsula, but not its fate.

Kelo and the plaintiffs who joined her in the lawsuit remained in possession of their former properties long after the decision, and the redevelopment outlined in the municipal development plan stalled despite the city’s court victory.

A settlement agreement signed one year ago gave Kelo until June 15 to leave the Fort, and she spent the day before that with the pink cottage she fought to save.

“We all miss our homes. We all miss living here,” she said, looking at a hilltop house surrounded now by a few vacant buildings and the quiet of a neighborhood razed. “We did what we thought was right. We can walk away with our heads held high.”

The house will be spared demolition and moved to Franklin Street in an effort funded by the Institute for Justice, which represented the Kelo plaintiffs in their lawsuit against the city.

Plans for the relocated building, including its ownership and use, aren’t definite, Institute for Justice Senior Attorney Scott Bullock said. A plaque is certain, a listing on the National Register of Historic Places possible, and any occupancy still to be determined.

Right now, Bullock said, the focus is on preserving the building and removing it from Fort Trumbull, a project for which the NLDC has granted an extension.

The next 12 months will bring several redevelopment project milestones.

The Coast Guard Foundation will commence its public campaign to raise funds for a new national museum on the Fort Trumbull waterfront within a year, and plans for the $50 million building will move toward the planning and zoning approval process.

Developer Corcoran Jennison will begin construction in September on luxury apartments and townhouses, the first new buildings to rise on the peninsula after extensive environmental remediation and infrastructure improvements. Just this month, Chelsea and Walbach streets and sidewalks were completed, and soil was graded onto a parcel designated for future office and research and development uses.

And an announcement is expected soon about negotiations to bring the Coast Guard Research & Development Center from Avery Point in Groton to an existing Fort Trumbull office building leased by Corcoran Jennison.

“The project moved slowly through those years of litigation,” NLDC Chief Operating Officer Gregory Coenen said. “Within the past year we’ve kind of broken free, and we’re genuinely moving forward.”

•••••The Kelo plaintiffs said they look back on their unsuccessful fight to remain at Fort Trumbull knowing they’ve nevertheless made it harder for local governments to seize private homes and businesses elsewhere for economic development purposes.

“It is some comfort knowing across our nation other states are doing something to protect the right to own your own property,” said Michael Cristofaro, son of plaintiff Pasquale Cristofaro. “We’ve accomplished what we set out to do: Make sure this doesn’t happen to anyone else. If one person can stay in their home because of what we did, we won.”

Public outrage met the Supreme Court’s finding two years ago that economic development and the jobs and taxes it brings constitute a public purpose for which a city may constitutionally exercise eminent domain. A wave of state statutes and voter initiatives that followed has imposed limits on condemnation powers that the high court declined to mandate.

Striving to strike their own balance between government authority and the rights of individual private-property owners, states have arrived at a diverse set of solutions.

Some reforms restrict the types of property that can be taken, such as private, single-family houses, said Dwight H. Merriam, partner at Robinson & Cole LLP in Hartford and co-editor of the book “Eminent Domain Use and Abuse: Kelo in Context.”

Other reforms refine the approval procedures for eminent-domain takings, Merriam said. A third category of reforms requires compensation to the owners of properties taken be greater than their fair market value.

According to the Institute for Justice, 41 states have strengthened restrictions on eminent domain in the two years since the Kelo decision. The organization counts Connecticut among the nine states that have not.

The General Assembly passed a bill this session that would revise the process by which a municipality uses eminent domain to take property. A municipality would be required to affirm that public interests in a proposed project outweigh private benefits; to approve of takings with a two-thirds vote of the legislative body; and to provide the owners of land, homes and businesses taken by eminent domain with 125 percent of their market value as compensation. The bill awaits Gov. M. Jodi Rell’s signature.

Even when it takes effect, the legislation — among the most vaguely worded, according to Bullock — would not prevent takings like those at Fort Trumbull, he said.

Jeremy Paul, dean of the University of Connecticut School of Law and the Thomas F. Gallivan Jr. professor of real property law, defended Connecticut’s bill.

“I thought it was quite sensible and well-crafted,” Paul said. “Anything that requires more careful, reasoned decision-making before a redevelopment agency condemns a house — I think that’s a good thing.”

•••••In the aftermath of the Kelo ruling, some states “overreacted” and took a “meat-ax approach to a more subtle problem,” Paul said.

“They passed rules that were intended to be draconian and will in fact be draconian. They will block projects that would have gone forward in the past” by making it more difficult for cities to assemble properties into developable parcels, he said. “Some urban areas are in desperate need of redevelopment, and eminent domain is sometimes a useful tool,” Paul said.

David S. King, associate dean of Quinnipiac University School of Law, said he sees a different problem with the new restrictions: They don’t fix what bothered people most about the Kelo decision.

“The aspect of Kelo that really hit home with people, if you’ll pardon the pun, is that people’s homes were taken by the government. Secondary, I think, is the issue of homes being taken for economic development. It is still possible, in most jurisdictions, for the government to take your home if it’s for a purpose other than economic development,” King said.

“My question is, what about those people? Does it make any difference if the government goes to Ms. Kelo and says, ‘We’re going to take your property for economic development,’ or, ‘We’re going to take your property for a school?’ ”

The public backlash that followed the Supreme Court ruling made a difference not only in state and local laws, but also limited eminent domain in other ways.

“The reaction to Kelo has chilled the will of government to use eminent domain for private economic development,” Merriam said.

Developers, too, have a diminishing interest in urban redevelopments they might have become involved in prior to the Kelo decision and ensuing public outcry, said John D. Echeverria, co-author of the report “Kelo’s Unanswered Questions: The Policy Debate Over the Use of Eminent Domain for Economic Development.”

“There are an awful lot of developers shying away because they don’t want to get involved in a time-consuming, political mess.”

•••••

National interest in the issue of eminent domain remains strong two years after the Supreme Court ruling in Kelo, and debate promises to carry on for years to come in state capitols, city halls and courtrooms around the country.

“This is not good guys and bad guys,” Paul said. “This is everyone trying to figure out the right balance between things we care about very much. We care about the sanctity of people’s property and homes, and we care about sensible planning, bringing jobs to urban areas, preventing sprawl and environmental damage.”

 

The Day: http://theday.com

 

De La Torre proposes limits on eminent domain for private uses: San Jose CA Mercury News, 5/21/07

By Steve Lawrence, Associated Press

California governments would be prohibited from using their eminent domain powers to acquire owner-occupied homes for shopping malls or other private development under legislation proposed Monday by a Democratic lawmaker and backed by a coalition of business, homeowner and environmental groups.
The constitutional amendment and an accompanying bill by Assemblyman Hector De La Torre, D-South Gate, also would restrict the use of eminent domain on small business properties public agencies buy up for private developments.The companion measures, which supporters say would help both small businesses and homeowners, were introduced as a compromise by opponents of an unsuccessful 2006 California ballot measure that attempted to impose broad limits on the use of eminent domain.Tom Adams, chairman of the California League of Conservation Voters and one of the supporters of the De La Torre legislation, said that in campaigning against Proposition 90 opponents promised to support “carefully crafted” eminent domain reform.

“We think this is the kind of carefully crafted reform that’s necessary,” he said in a conference call with reporters.

The bills also are a response to a 2005 U.S. Supreme Court decision that upheld New London, Conn.’s right to take homes for an economic development project, but allowed several states to pass laws limiting eminent domain for non-public uses.

Besides the provisions limiting the use of eminent domain on owner-occupied homes, the De La Torre legislation would:

  • Prohibit the transfer of small businesses acquired through eminent domain to private parties unless the taking is part of a comprehensive program to eliminate blight.
  • Allow small business owners to avoid the mandatory sale of their properties by agreeing to make physical improvements as part of the revitalization project that raised the prospect of an eminent domain proceeding.
  • Give small business owners who refuse to participate in the revitalization plan the choice of either selling the business or moving and receiving compensation.


Business owners who decide to relocate would receive fair market value for their properties, if they owned the targeted building.

The owner also would receive moving expenses up to $50,000 to set up operations at a new location and up to three years of compensation to make up for having to pay higher rent or a bigger mortgage.

If the business did not relocate, the owner could receive fair market value for the property. The owner also would receive 125 percent of the value of the business entity if it could not be moved and still remain economically viable.

The legislation would also give small businesses and homeowners the right to repurchase their properties if they were seized by eminent domain for a public facility and that facility was never built.

Betty Jo Toccoli, president of the California Small Business Association, which claims to represent more than 200,000 business owners, said the legislation “ensures fairness.”

But Tim Sandefur, a staff attorney with the conservative Pacific Legal Foundation, said the legislation would provide “virtually no protection for property owners.”

The measure would not cover farms, churches, rental housing, second homes, investment property and businesses with more than 25 employees, Sandefur said.

Undercutting the protections it does provide, are loopholes and weak legal definitions, he added. For example, California law defines “blight” so vaguely that “any property can be taken” through eminent domain proceedings, he said.

Adams said the definition of blight has been strengthened by lawmakers and court rulings in recent years. But he also said that supporters of the De La Torre legislation were willing to accept changes to it, if critics point out real weaknesses.

“This is not a ballot measure where you have a take-it-or-leave-it proposition,” he said. “This is a legislative proposal that can be worked on by both parties” before going on the ballot.

If lawmakers approve it, the constitutional amendment would go on the ballot next year for considerations by voters.





San Jose CA Mercury News: http://www.mercurynews.com

Coalition Introduces Eminent Domain Reform Package: Californians for Eminent Domain Reform, 5/22/07

Group Introduces ACA 8 and a Companion Statutory Measure (De La Torre) to Protect Homeowners and Small Businesses from Eminent Domain

Press release

A broad coalition of homeowner groups, small business representatives, labor, environmental, community and ethnic organizations today joined Assemblyman Hector De La Torre (D-South Gate) in unveiling a package of eminent domain reforms that would provide homeowners and small businesses with new, strong protections against eminent domain. Authored by De La Torre, Assembly Constitutional Amendment 8 (ACA 8)and a companion statutory measure (soon to be amended) are in direct response to the U.S. Supreme Court’s “Kelo” decision. They include a constitutional prohibition on the use of eminent domain to take an owner-occupied home to convey to another private party, as well as new restrictions on the taking of small business properties for conveyance to private parties. ACA 8, the constitutional amendment, is aimed for the 2008 ballot.”Today we are unveiling a package that would provide California homeowners and small businesses with new and unprecedented protections against eminent domain,” said Assemblymember De La Torre, author of the legislative package. “Two years ago, the U.S. Supreme Court’s infamous ‘Kelo’ decision sparked a nationwide outrage focusing on abuses of eminent domain. This package is in direct response to that decision.” Ken Willis, president of the League of California Homeowners said, “If passed by the legislature and approved by the voters, this package would provide California homeowners long overdue protections from eminent domain for private development. The League of California Homeowners wholeheartedly supports this package and will work with our legislators to place the constitutional amendment before the voters in 2008 and to pass the companion statutory measure.”

ACA 8, a constitutional amendment to be placed on the 2008 ballot would:

  • Prohibit the State or local governments from using eminent domain to acquire an owner-occupied home (including townhomes and condos) for transfer to another private party.
  • Prohibit government from using eminent domain to acquire a small business to transfer to another private party, except as part of a comprehensive plan to eliminate blight and only after the small business owner is first given the opportunity to participate in the revitalization plan.
  • Grant a “Right to Repurchase.” A home or small business property acquired by eminent domain must be offered for resale to the original owner if the government doesn’t use the property for a public use.


The package also includes a companion statutory measure that would provide enhanced protections for small business owners confronted with eminent domain. Key provisions of this measure include:

  • If the small business does not participate in the revitalization plan it can choose between relocating or receiving the value of the business. If the small business relocates, it will receive fair market value of the real property (if owned by the small business); plus all reasonable moving expenses; plus expenses to reestablish the business at a new location, up to $50,000; plus compensation for the increased cost of rent or mortgage payments for up to 3 years.
  • If the small business does not relocate and instead is bought out, it will receive fair market value of the real property (if owned by the small business) and 125%of the value of the business if the business could not have been relocated and remain economically viable.


“Combined, this package will provide small business owners with strong protections against eminent domain, and ensure fairness and responsible compensation when a small business owner does not choose to participate in the new development project,” said Betty Jo Toccoli, President of the California Small Business Association which represents more than 203,000 small business owners through 78 affiliate small business organizations.

Frank Moreno, President of the California Mexican American Chamber of Commerce, said: “This package is about fairness for minority small businesses, and all small businesses confronted with eminent domain. It will ensure these entrepreneurs are adequately represented, given options to participate in the new business plan, and given fair compensation if they choose not to participate.”

Tom Adams, board president of the California League of Conservation Voters, said: “This is a responsible and honest eminent domain reform package. It’s time to take care of the eminent domain issue once and for all so that California doesn’t continue to be vulnerable to special interests who want to use the issue of eminent domain as a stalking horse to undermine environmental protection like Proposition 90 and some of the eminent domain measures we’ve seen filed with the Attorney General this year.”






Californians for Eminent Domain Reform: http://www.eminentdomainreform.com

Eminent domain ‘reform’ a scam by backers of status quo: San Diego CA Times-Union, 5/24/07

Opinion

By Chris Reed

It could not be more obvious that California needs to reform eminent domain laws, which are often used to punish homeowners and businesses out of favor with City Hall and reward well-connected firms. So I welcomed news that another eminent domain reform initiative had surfaced in Sacramento.
Unfortunately, it turns out to be a sham:

The initiative applies only to owner-occupied homes, not apartments. It defines small businesses in a way that only a small number of them would be protected. It does not protect churches, farms, investment property, vacant land and homeowners who have not lived in their house for more than a year.

When we questioned the League about these problems, we received a rebuttal that argued: “It is not easy for a city to determine that blight exists. A city cannot simply declare a neighborhood blighted.” So, proponents admit, that their initiative continues to allow for the taking by government of “blighted” properties, which is the current, unacceptable standard.

ACA8 offers a few tweaks that would protect some homeowners and increase compensation for some small business owners, but passing it would be worse than passing nothing. It would convince the public that reform has taken place, while changing nothing of substance. That is the goal of proponents.

That’s from an Orange County Register editorial, which has this nice, sharp, terse description of the initiative’s sponsors:

… the League of Cities, the California Redevelopment Association, the League of Conservation Voters and other groups that lobby for maximum government control over private property.





San Diego CA Times-Union: http://weblog.signonsandiego.com

‘Reform’ that’s worse than doing nothing: Orange County CA Register, 5/24/07

Editorial

Government-backed measure on reining-in eminent domain would do little good

No one should be shocked by dishonesty in the political process, but an effort by the League of California Cities and other big-government organizations to supposedly restrict the abuse of eminent domain is so dishonest that it’s worthy of caution.Consider: The groups that over the years have zealously defended the use and abuse of eminent domain by governments to transfer properties from private owners to big developers to enhance tax revenue are proposing this “eminent domain reform package.” That, in itself, should cause Californians to pay careful attention to the details. It’s not hard to find their motive. Property rights advocates who support true reform are promoting a measure for the 2008 ballot after the defeat last November of Proposition 90.
Prop. 90 would have restricted eminent domain for nonpublic uses and required compensation for owners whose property loses value because of changes in government regulations, such as growth restrictions. The latter protection turned out to be controversial and hobbled the campaign; the new measure does not include it.Fearful of this new initiative are the League of Cities, the California Redevelopment Association, the League of Conservation Voters and other groups that lobby for maximum government control over private property. So instead of just opposing it, they have offered an alternative. They intend to confuse voters by pretending that their initiative offers real protections. It does appear to offer some protections, but it includes loopholes for government so broad that it renders any such protections useless.

Here’s the key description of the measure, ACA8, from its proponents: “Prohibit government from using eminent domain to acquire a small business to transfer to another private party, except as part of a comprehensive plan to eliminate blight and only after the small-business owner is first given the opportunity to participate in the revitalization plan.”

California law already requires a blight finding before using eminent domain. Blight is a wide definition. Most of the egregious abuse cases we have written about in California over the years – i.e., taking church property to build a Costco, taking businesses and giving them to a developer, etc. – could continue if this initiative passes, because in those cases officials found a consultant to declare “blight.”

The initiative applies only to owner-occupied homes, not apartments. It defines small businesses in a way that only a small number of them would be protected. It does not protect churches, farms, investment property, vacant land and homeowners who have not lived in their house for more than a year. When we questioned the League about these problems, we received a rebuttal that argued: “It is not easy for a city to determine that blight exists. A city cannot simply declare a neighborhood blighted.” So, proponents admit, that their initiative continues to allow for the taking by government of “blighted” properties, which is the current, unacceptable standard.

ACA8 offers a few tweaks that would protect some homeowners and increase compensation for some small business owners, but passing it would be worse than passing nothing. It would convince the public that reform has taken place, while changing nothing of substance. That is the goal of proponents. Fortunately, there’s likely to be a good alternative on the ballot. More on that in coming months.




Orange County CA Register: http://www.ocregister.com

City of Del Rey Oaks Defends Eminent Domain Ordinance: Monterey County CA Herald, 5/24/07

By Andre Briscoe

A new ordinance outlining how Del Rey Oaks could acquire property using eminent domain was written only to comply with state law, according to the city attorney.

On Tuesday, the council heard the first reading of the proposed ordinance.But City Attorney Rob Wellington insisted that it was necessary to comply with recently passed state legislation that has tightened the ability of cities and counties to use their condemnation powers to jump-start development projects.

Part of the legislation requires that a city or county have a written policy describing how land will be acquired using eminent domain. The council told residents who attended the meeting that the only redevelopment in the city will be the planned resort project area: 360 acres of Fort Ord land adjacent to South Boundary Road, that is slated to hold two hotels, homes and a golf course.

Wellington said the ordinance was “only a matter of legality” and that using eminent domain to acquire additional property for redevelopment would be indefensible, especially given the lack of blight in the city.

“This is just a formality. It’s something that needed to be done,” said Wellington. “It’s a law that will allow redevelopment agencies (in the state) to restate the power they already have.”

Some who attended the meeting voiced concern that such an ordinance could be used to seize public and private land. Former councilwoman Kathi Smith hinted that the Del Rey Oaks Golf Center and a 17-acre vacant parcel that sits between City Hall and Monterey-Salinas Highway were areas the city could impose eminent domain on later. Wellington said that if the city develops those properties, eminent domain would not be an issue because both are city-owned. He added that there are no plans to develop them.

Councilman Jerry Edelen sought to calm any fears residents might have.

“I can’t imagine this council, in my wildest dreams, confiscating private property from residents of Del Rey Oaks for commercial purposes,” Edelen said. “That, to me, would be insane.”

The legislation passed last year was a response to a 2005 U.S. Supreme Court ruling that affirmed a city’s right to use eminent domain in taking private property to help increase local tax revenues. The council will vote on adopting the ordinance at next month’s meeting.





Monterey County CA Herald: http://www.montereyherald.com

Compensation for Rented Property

When a property is leased or rented, both the owner and tenant may be entitled to compensation, depending on whether the lease contains an enforceable condemnation clause. If there is no condemnation clause, the property is generally valued as a whole and that value is then divided among the owner and the tenants according to their respective interests in the property. What many property owners do not realize is that if their property is leased at below market rents, and their lease does not contain a condemnation clause, the tenant may be entitled to receive a sizeable portion of any compensation paid for the real estate.

It should be noted that the government can alternatively require that each party’s interest be separately valued, rather than valuing the property as a whole and then dividing the whole. This is, however, rare.

Taking Possession of Property Before Final Value is Determined

California Code of Civil Procedure section 1255.410 authorizes the condemning agency to ask the court for possession of the property even before judgement has been entered in the eminent domain proceeding. The court may only do so, however, if the condemning agency has first deposited into the County or State Treasury the amount which it determines as the probable compensation to be paid for the property. If the court grants the condemning agency’s request for early possession — which the court almost always will — the property owner, in most cases, will be given 90 days notice before having to vacate the property.

Once the condemning agency deposits the amount of probable compensation, the property owner or tenant may apply to the court to withdraw that portion of the deposit which represents the owner’s or tenant’s probable amount of compensation. You may withdraw the amount of the agency’s deposit without waiving your claim for greater compensation. However, withdrawing the deposit does waive any challenge to the government’s right to take the property.

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COPYRIGHT © 2010 Arthur J. Hazarabedian, Esq.