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CALIFORNIA EMINENT DOMAIN LAW BLOG

Downey to use eminent domain on corner site: Los Angeles Wave, 8/30/07

By Arnold Adler

DOWNEY — The City Council Tuesday night unanimously authorized the use of eminent domain to force property owners to sell the city some 896 square feet of right-of-way to continue the $19 million Lakewood Boulevard widening project.

Public Works Director Desi Alvarez said the property, currently containing parking and landscaping, is the last piece needed for widening the street at the intersection of Lakewood Boulevard and Imperial Highway.

He said the city was unable to come to an agreement with property owners James Kriss and his brother, Ronald, who lease the land at the northwest corner of the intersection to Conroy’s Flowers.

Alvarez said the city needs right-of-way along the south side of Imperial and west side of Lakewood around the store but the building itself would not be affected except for some minor alteration to the front portion, which the city would pay for.

Kriss objected to the city’s action, calling for more negotiations and alleging that the city did not follow state regulations while seeking to acquire the land since 2003.

But Chris Mandenhall, the city’s eminent domain attorney, said all regulations were followed under state law.

She noted that the flower shop would still have access from the streets via two driveways.

Mayor Pro Tem Dave Gafin, who with Councilwoman Anne M. Bayer made up an ad hoc committee on the issue, said “we didn’t take any more then we needed for the widening. In fact, we agreed to a reduced width for the sidewalk.”

Councilman Mario Guerra agreed, saying, “this does not require the building to be changed or the business to close down. It must be done for the public good.”

Alvarez said Lakewood must be widened because of increased traffic, especially around the 160-acre site south of Stewart and Gray Road, now occupied by a shopping center.

Construction also is under way on a new park and the Columbia Memorial Space Center at Lakewood and Clark Avenue.

“The overall appearance, efficient operation and maintenance of Lakewood Boulevard is essential to the economic health and welfare of the city of Downey,” Alvarez said in a written report to the City Council.

Because of its age and traffic from some 40,000 vehicles a day, Lakewood Boulevard has deteriorated and does not meet state safety standards, he added.

Plans call for widening the thoroughfare from two to three lanes each way plus turning lanes, new curbs and gutters, landscaping and lighting.

The plan includes raised medians and synchronized traffic lights to improve traffic flow.

Phase one, widening Lakewood from Fifth Street south to Meadow Road, has been completed. Phase two, now under way, would widen the street from Meadow Road south past Imperial Highway to the city’s southern border at Gardendale Street.

Phase three calls for widening from Fifth Street north to the city limits at Telegraph Road.

In a related action Tuesday night, council directed city staff to seek bids for Phase three, with work to start in November. Estimated cost of the project is about $3 million, which is available from federal road and traffic grants, Alvarez said.

Completion is estimated for October 2008.

Los Angeles Wave: http://www.wavenewspapers.com

Developer won’t oust popular gym; he’ll build project around it: Union Tribune, 8/30/07

By Tanya Sierra

NATIONAL CITY – A developer proposing a block-long housing and retail project that includes a 24-story condominium tower has said he no longer wants to displace a popular National City athletic center. But that’s not stopping the gym’s lawyers from challenging the city’s eminent domain authority.

Jim Beauchamp said this week that he would build around the Community Youth Athletic Center – a tutoring and mentoring program that trains young boxers – instead of continuing to try to buy its building.

The nonprofit center’s board of directors, which has been fighting to either stay in its paid-for building or get a substantially higher offer from Beauchamp, reacted cautiously to the news.

“We have never seen this in writing,” board vice president Victor Nuñez said. “We do not know any details as to what exactly they mean by they’re going to build around us.”

Beauchamp said he has tried to reach a deal with the center for three years.

“If they want to stay, we can design around them,” Beauchamp said Tuesday. “There’s no sense in fighting; we have to move on. I’ve been more than willing to set up meetings and extend the olive branch for years.”

A similar situation played out in 2006 when a landowner up the street from the gym was on the brink of selling his corner property to an Australian development team. The owner, Daniel Ilko, eventually decided not to sell. The developer, Constellation Property Group, then decided to build around his property.

Earlier this month, the gym’s plight reached a national platform after the center’s high-profile lawyers, based in Virginia, sent news releases to hundreds of media organizations explaining their National City case.

The Institute for Justice was the law firm that represented homeowners in the Kelo v. City of New London, Conn., eminent domain dispute in 2005. In that case, the U.S. Supreme Court ruled that governments could force private property owners to sell their land to spur economic development.

Some journalists and bloggers picked up the National City story, including Sports Illustrated and a syndicated Florida newspaper columnist.

For about 15 years, the gym’s founders, Carlos Barragan Sr. and his son Carlos Jr., have been recruiting gang members and at-risk youths in National City. Hundreds of youths learned to box at the Barragans’ center, which began in the elder Barragan’s backyard.

The father and son instilled a sense of discipline in the boxers and mentored many who believed they were headed for prison or an early death.

Rick Reilly of Sports Illustrated wrote in his Aug. 13 column that “the city is threatening to seize their property through the right of eminent domain, which is bureaucratese for ‘we take your land and you watch.’ ”

To Mayor Ron Morrison, Reilly directed this comment: “And if you kick the Barragans out so some slick in Armani can buy a bigger yacht, I hope your car stereo gets jacked – weekly – by a kid who would’ve otherwise been lovingly coached on their jabs and their math and their lives.”

That’s a hit below the belt, Morrison said, pointing out that so far the city has made good on its word not to use eminent domain to force the center to sell.

City officials have been working to relocate the center since 2005, which is more than its three neighbors got when the city began eminent domain proceedings against them in 2006. In the gym’s case, city officials have considered it a valuable community resource worthy of relocation assistance.

“This is sleazy journalism,” Morrison said of Reilly’s column. “For one thing, the gym isn’t under eminent domain. They’ve never been threatened with eminent domain. We were working with them. We allowed them into that gym under the auspices that they would be leaving.”

That’s where the case gets sticky.

When the gym first moved into the building in 2002, Morrison said the Barragans knew the building was in a redevelopment area slated for revitalization in a few years.

Youth center board members say that’s not true. However, in 2005, Carlos Barragan Jr. said in an interview that he knew the building was in a redevelopment area. When asked again last month, he said he did not know.

Regardless, this case is about more than Beauchamp’s development, said Jeff Rowes, an attorney for the Institute for Justice.

“If Mr. Beauchamp has indeed had a change of heart, that’s great. We welcome that,” Rowes said. “But that doesn’t change what the gym needs to do, which is challenge the blight designation now.”

To be seized through eminent domain, property must be considered blighted, described by state law as property that is not economically viable and is physically deteriorating.

The Institute for Justice contends that National City’s method of designating blight was perfunctory and lacking detail. Its attorneys intend to file a lawsuit challenging the blight study, which they criticized last month when the city extended its eminent domain authority an additional 10 years.

“It’s important to emphasize that this story isn’t just about Jim Beauchamp,” Rowes said. “It’s about eminent domain abuse, and that hasn’t changed.”

 

The Union Tribune: http://www.signonsandiego.com

Downtown Fresno Businesses Not Yet Worried About Forest City Project: ABC30, 8/27/07

By Maureen Naylor

The Fresno city council Tuesday will decide if it wants to move forward on a new Forest City plan to develop an area in downtown Fresno.

Plans call for a major makeover along Mono Street, apartments for 2,000 people, with roundabouts, fountains and a park. But for this to happen the city will have to deal with about two dozen businesses already in the area.

Four generations of Baskins have worked at the family auto upholstery shop in downtown Fresno which is right in the middle of the proposed development.

Bruce Baskin, business owner, says “We don’t want to go anywhere, but with eminent domain, they don’t give you much of a choice. I think it’s a bad idea, it’s kind of a pipe dream, I don’t think it will fly down here.”

Fresno leaders hope Forest City will draw more people to downtown with its three phase $300 million project covering 19 blocks southeast of Chukchansi Park.

Instead of getting a big name store like Bass Pro, the developer now wants to build about 800 townhomes and apartments with stores underneath, followed by a movie theater in the second phase and more commercial space in the final stage.

Getting the land in place will likely mean the city using eminent domain. Jerry Duncan, Fresno City Council Member, says “I don’t see that as a big issue, this project and the area down here we’ve been talking about for a long time. And frankly a lot of these property owners that we’ve talked to are like, when can I get my check.”

Like Zorig Berberian, who’s willing to move his auto shop. “Mechanics shops aren’t going to last too long around here, so if I find somewhere nearby, I will move over there. If they have to move me out, that’s okay with me,” says Berberian.

Businesses we talked to want to remain downtown if they have to move but say after years of hearing about possible changes, they’ll start worrying when the bulldozers actually come.

Even if the project passes Tuesday, it will take a year for the environmental impact report and another year before construction starts.

ABC30: http://www.ABC30.com

Eminent domain fears in Seaside: The Monterey Herald, 8/25/07

By Andre Briscoe

A workshop this week aimed at educating the public and Seaside city officials on the rules governing California redevelopment did little to ease fears of at least one property owner, who is worried his home could be a victim of the city’s development plans.

Ernest Glover, president of Southern California-based GRC Redevelopment Consultants, outlined the city’s two major redevelopment projects, explained California redevelopment laws, and outlined steps the city would have to take to exercise its power of eminent domain to seize land slated to become the West Broadway Urban Village project.

That project would include 40 acres stretching from Canyon Del Rey and Del Monte Boulevards past Fremont Boulevard to the upper Broadway area.

Saif Ataya, whose home sits on the 300 block of Amador Avenue, said he worries that another proposal, Reggie Jackson’s hotel and conference center on 5.7 acres, would force his family to sell and move.

Ataya said he has received little information about the project.

“I don’t want to seem like an obstacle, … but from the bottom of my heart I feel that there is a lack of communication between the city and residents,” said Ataya. “I was born and raised in Iraq, and my family home was taken. It was similar to eminent domain. This kind of thing makes me remember the system over there. I’m just afraid something like that will happen here.”

City redevelopment agencies can acquire property, but it must be authorized within the city’s redevelopment plan and must be used in the public interest, such as to clean up blighted areas, said Glover. Among the factors considered to be “public interest” are economic development, community and neighborhood revitalization and historic preservation.

A recent Supreme Court decision permits local governments to exercise eminent domain to turn some private property over to a private developer for the purpose of economic development.

The city has two redevelopment project areas: the so-called “Merged Project” area and the old Fort Ord area. Fort Ord land was acquired after the Army base closed in 1994.

The merged area, formerly seven separate project areas within the city, was formed in 1996. The agency’s power to exercise eminent domain within these project areas expires in April 2008.

In 2006 the California legislature revised community development law limiting to 12 years the time a city’s redevelopment agency can impose eminent domain. An extension to that time limit can only be made by an amendment to the redevelopment plan.

City staff members will recommend that the City Council proceed with plans to extend the agency’s authority during the Sept. 20 council meeting.

Even if the city decided to use eminent domain, the process is tightly regulated, Glover said. Safeguards are in place to ensure that the rights of property owners are protected and that they are treated fairly, he said.

“You have to show that you need it, not that you just want it,” said Glover. “You have to show that an area is predominantly blighted. The whole idea is to avoid a long drawn-out process. It’s not nice for the owner and it’s not nice for the council or the city.

“The agency has to go as far as it possibly can to make sure that whoever is being displaced by eminent domain or any other action comes out whole. … You can’t just put them out there with nothing. You have to make them whole, or better than whole.”

Blighted areas are considered more than just deteriorating buildings, Glover said. They include obsolete buildings, and areas of high crime and with out-of-date building codes.

Assistant City Manager Jill Anderson said imposing eminent domain would be a “last-resort scenario.”

“It is in (the city’s) best interest that we create a win-win proposition for all concerned. Something that would be satisfying financially, emotionally and otherwise for everyone,” she said. “It only makes good sense. The important thing to remember is that this is a discussion, and only a discussion, about amending plans to reflect today’s redevelopment realities.”

The Monterey Herald: http://www.montereyherald.com

Governor worries over bid to limit land seizures: The Sacramento Bee, 8/22/07

By Kevin Yamamura

A proposed initiative limiting how governments seize private property has drawn concerns from Gov. Arnold Schwarzenegger and a Republican state senator that it could block construction of dams and a Delta canal.

A legal analysis issued this week by Richard Martland, a former state attorney general official, argues that the eminent domain initiative would prevent government from taking private land “for the consumption of natural resources,” including water storage. Martland wrote the analysis for initiative opponents, including environmentalists and local governments.

The initiative is backed by the Howard Jarvis Taxpayers Association and the California Farm Bureau Federation after a U.S. Supreme Court decision in 2005 allowed cities to transfer property from one private owner to another for redevelopment, enraging property rights groups.

Jon Coupal, president of the Howard Jarvis group, charged Tuesday that the Martland analysis was flawed because Coupal believes the initiative does not restrict large public works projects. Proponents have circulated petitions since June and plan to collect the necessary 694,354 signatures without changing the initiative language, he said.

Though the analysis was written for opponents, some state leaders, including one who backed an unsuccessful eminent domain change last year, say the initiative’s wording raises eyebrows and demands further legal interpretation.

“As I read it, there’s certainly reason for concern for what it means for the future of water projects in California, especially as it pertains to new water storage,” said state Sen. Dave Cogdill, R-Modesto, who backed an eminent domain initiative last year. “We’ll continue to monitor it, and hopefully we can find some resolution here.”

Cogdill carried legislation this year for Schwarzenegger that included a $5.9 billion bond for new water storage and conservation. The governor and legislative Republicans have made water storage one of their top priorities this year.

The Republican governor spent Tuesday in Los Angeles with U.S. Sen. Dianne Feinstein, D-Calif., at a meeting they convened to explore ways to improve the Sacramento-San Joaquin Delta and California’s water system.

Schwarzenegger Communications Director Adam Mendelsohn said, “We are very concerned about this issue and are analyzing the language carefully.” He added that anything that would undermine the state’s ability to build new water storage would be “a major problem.”

John Gamper, director of taxation and land use for the California Farm Bureau Federation, said the initiative is narrowly tailored to restrict government seizure of natural resources derived from a particular plot of land, not public water storage projects such as dams or a canal.

He added that the Farm Bureau, whose members clamor for new water storage in California, would never have drafted an initiative that undermines dams. He said the Martland analysis was “tortured logic.”

“Public facilities are clearly exempt and are clearly not included,” Gamper said. “That’s a public use. We’re talking about the transfer of private property for private use.”

The dispute hinges on a clause in the initiative that defines “private use” as the transfer of property “to a public agency for the consumption of natural resources or for the same or a substantially similar use as that made by the private owner.” Such “private use” property transfers would face new restrictions.

Proponents say that clause pertains only to instances where governments would seize private dams or land that contains resources such as natural gas reserves. But Martland said the clause is so broad that it would hamper public purchases of land for construction of new water storage.

“We don’t know if this is an effort to intentionally sabotage the development of new water or whether this is the mother of all drafting errors,” said Steve Merksamer, for whose firm Martland wrote the analysis. “But we do know that, as drafted, this is the dagger in the heart of new water projects.”

Merksamer said backers would have to resubmit their initiative and recollect signatures if they want to avoid damaging future water projects.

In 2005, the U.S. Supreme Court ruled that cities could seize property for redevelopment after a challenge arose over a Connecticut town’s plan to build an entertainment district along a waterfront.

The Howard Jarvis group last year backed a California initiative, Proposition 90, to curtail governments’ ability to seize property for use by another private owner. It also required governments to compensate private property owners, a provision critics said would result in reimbursement claims for losses associated with environmental laws.

Schwarzenegger did not announce his opposition to Proposition 90 until the final week of his re-election campaign. The initiative lost with 47.6 percent of the vote.

The Sacramento Bee: http://www.sacbee.com

Ridge water district looks into acquiring neighbors: Oroville Mercury Register, 8/18/07

By Ryan Olson

PARADISE — For years, the Paradise Irrigation District has been in talks about partnering with its neighbor, Del Oro Water Co., to share water from a proposed regional pipeline.

This week, PID officials announced they’re looking at an alternative — acquiring Del Oro’s two districts covering Lime Saddle and Old Magalia.

Officials at the privately owned Del Oro maintain its districts aren’t for sale.

If PID decides to press forward, a cursory glance at the process shows it could involve annexations, court hearings and the public water district exercising eminent domain to purchase Del Oro’s infrastructure and water rights in the area.

PID District Manager George Barber said there are potential advantages to acquisition, including utilizing Butte County’s unused water allocation from Lake Oroville. He said owning the two districts could simplify how the water district delivers water to customers.

He said current PID customers would benefit from having an additional water supply, especially during a drought.

“It will serve them mostly because the district will be taking the lead in moving forward with improving our water supply with the Lake Oroville option,” Barber said.

For now, PID is starting a required environmental review. Barber said the district’s elected board hasn’t made a decision. He welcomed the public to comment on the proposal.

“Before we move any further, we need to consider the environmental impact of those alternatives,” Barber said.

Kristin Aguiar, Del Oro’s community relations director, said the company hadn’t heard about PID’s specific acquisition proposals until this week. The company responded by reiterating that its districts aren’t for sale.

Aguiar said Del Oro is committed to pursuing the intertie pipeline, which is pending approval from the California Public Utilities Commission.

“Although PID is exploring this option, it will in no way deter us or stop us from pursuing this project,” Aguiar said.

The regional intertie project is geared to guarantee a reliable supply of treated water from Lake Oroville to Del Oro’s ridge customers. Del Oro is looking at spending about $5.1 million for the intertie’s first phase to make needed infrastructure improvements and to build a pipeline.

If PID annexes Del Oro’s two districts, it could take over the company’s regional intertie project. Barber said it could better balance PID’s water distribution and the district could bring water up the ridge from the lake during off-peak hours when rates are cheaper.

Adding Old Magalia to PID would also allow the district to add a backup pipe to its customers from its water treatment plant.

If PID presses ahead with the acquisition process, it will have to seek approval from the Butte County Local Agency Formation Commission. Residents in the affected districts would also have to petition to be annexed into the Paradise district, a process that may include an election.

A CPUC employee said the process would also include a stop in court to address the eminent domain issue.

Currently, Del Oro operates four districts on the ridge — Lime Saddle, Magalia, Paradise Pines and Stirling Bluffs. The Magalia district covers the older section of the community.

Del Oro currently has a total of 5,551 connections — 631 in the Lime Saddle and Magalia districts. The intertie project would also allow Del Oro to add up to 600 additional customers in the Lime Saddle area who previously didn’t have service.

PID has more than 10,000 customers, nearly all within Paradise town limits.

While PID is exploring this new option, both service providers are continuing to work on their respective projects to enhance their water supplies.

PID is working to increase water storage and to take full advantage of its water rights.

On Wednesday, the district awarded a contract worth about $2.2 million to Livermore-based Mountain Cascade Inc. to build a pipeline to bypass the Magalia Reservoir. Barber said the 7,000-foot pipe will run from the creek north of the reservoir directly to the district’s treatment plant.

The project provides a backup in case an accident contaminates the Magalia Reservoir, and it saves money from reduced pumping costs.

 

Oroville Mercury Register: http://www.orovillemr.com

Anti-tax group eyes K Street: If eminent domain is used by city, it would be issue in a state ballot measure: The Sacramento Bee, 8/17/07

By Terri Hardy

A push for the renovation of K Street has turned ugly, pitting the city against Moe Mohanna, the owner of several blighted downtown properties.

If the city were to use its biggest stick and try to forcibly take Mohanna’s land, it could set up an unintended result: turning Mohanna into the poster child for a ballot initiative looking to crack down on the use of eminent domain.

Mohanna’s legal fight with the city, according to sponsors of the statewide ballot initiative, would certainly be prime fodder for their campaign.

“Moe Mohanna’s case won’t just be a local issue then, it will be a statewide issue,” said Jon Coupal, president of the Howard Jarvis Taxpayers Organization, one of the initiative’s sponsors.

Already, Coupal said, Mohanna has contacted him about his legal wrangling with the city.

The city is suing Mohanna and his development team to force them to go through with an agreed-upon land swap with another developer. The deal was devised to allow the revitalization of two of K Street’s worst stretches — the 700 and 800 blocks.

A court ruling this week put the success of the city’s suit in question when a judge found Sacramento wasn’t likely to prevail at trial. Superior Court Judge Loren McMaster found that a fire and demolition of buildings in the 800 block lowered its value, making it an unfair trade for Mohanna and his team.

City officials have said consolidation of the land is crucial to the redevelopment plan. To speed the process, the city has spent at least $24 million to buy portions of the blocks and to relocate merchants.

The property exchange would allow Mohanna and his development team to revitalize the 800 block of K Street. And it would mean a development team fronted by Joe Zeiden, owner of the Z Gallerie furniture retail chain, could revamp the historic buildings on the 700 block of K Street and install retailers in them.

John Dangberg, assistant city manager for economic development, said city officials had yet to determine the implications of McMaster’s ruling. He said he believed the lawsuit, still in its early stages, would continue.

Dangberg said he believed the city could continue with the suit and pursue eminent domain at the same time. Any decision to go through with eminent domain would be a public process, with a final vote made by the City Council.

“Eminent domain is a tool of last resort, but that said, our goal is to get K Street developed,” Dangberg said. “We are prepared to recommend to the council that we use every tool available to get us to that end.”

City Councilman Ray Tretheway, whose district includes K Street, said the council has yet to be briefed. However, he said he thinks the city should continue with the lawsuit, even if it takes a year or more to come to trial.

“I think we should stay the course,” Tretheway said.

Myron Moskovitz, the attorney representing Mohanna’s development team, said his clients are preparing to fend off an eminent domain push.

“That’s the word we get back from the city,” Moskovitz said. “They haven’t formally begun the procedure, but they’re absolutely considering it.”

For years, some properties in the 700 and 800 blocks of K Street have been allowed to fall into disrepair, even collapse. At the beginning of 2005, the city took a get-tough policy saying if property owners in those blocks didn’t submit workable redevelopment plans, the city would take the land through eminent domain.

The city then awarded Mohanna and his team the right to develop the 800 block and Zeiden the opportunity to redo the 700 block.

The city has been forced to use eminent domain to take possession of crime-ridden properties it could not obtain through other means, said Lisa Bates, director of housing and development for the Sacramento Housing and Redevelopment Agency.

The Franklin Villa housing area in south Sacramento was turned into affordable housing owned by a nonprofit agency. Washington Market, a liquor store in Oak Park, was seized through eminent domain and torn down. The store had been a magnet for drug crimes, robberies and prostitution, police said.

Dangberg said the city would lose a vital tool if local governments lost the right to use eminent domain for economic development.

In response to the Howard Jarvis eminent domain initiative, the Assembly Constitutional Amendment 8 has been proposed. Both are still gathering signatures to qualify for the June 8 statewide ballot.

ACA 8, like the Howard Jarvis measure, would prohibit the state or local government from taking land from a homeowner if it is to be transferred to a private party. But ACA 8 would not prohibit taking property from small business owners. Instead, it would require the owner first be given a chance to participate in a revitalization plan.

The Sacramento Bee: http://www.sacbee.com

East Lewelling widening finally gets under way: County uses eminent domain to seize bordering properties: The Daily Review, 8/13/07

By Rachel Cohen

 

SAN LORENZO — After 30 years of talk and two years of serious investigations, the county has begun the physical process of widening East Lewelling Boulevard.

The section of East Lewelling Boulevard that runs between Hesperian Boulevard and Meekland Avenue outgrew its two lanes long ago.

“With Lewelling being just one lane (in each direction), there’s a lot of traffic,” said resident Roy Deno. “Especially when a train comes and San Lorenzo High School lets out.”

In addition to passing through two railroad crossings, East Lewelling is also a main route to Interstates 238 and 580.

Hedged in by dirt and broken sidewalks in some places, the road will be widened to four lanes with a planted median and bordered by nearly 10-foot sidewalks with landscaping.

A total of 65 properties will be affected by the road widening. About one to five feet will be taken from these properties, said Rory MacNeil, Alameda County Public Works Agency assistantchief of the real estate division.

Public Works held three public hearings July 10, 24 and 31, and the county Board of Supervisors voted July 31 to begin the eminent domain proceedings that grant the authority to take the properties along the road from those owners who haven’t reached a monetary settlement with the county.

Some 20 properties already have been granted to the county. MacNeil said eminent domain was filed on roughly 40 properties, whose owners were notified by letter within the past couple

of months. In following federal guidelines, the county provides the appraised property value and the owners may do their own appraisal study so that they may be paid fair market value.

“They had the opportunity to meet with me, the appraiser, at the appraisal property and go over the project as necessary,” MacNeil said.

As part of relocation assistance, MacNeil added, the county helps with packing and unpacking, advertising the new location and the reestablishment of phone and computer connections.

The state Legislature recently passed a law — Senate Bill 1210 — which extends the eminent domain process from about four months to six months, which the county also incorporated into its timeline during July’s hearings. The county plans to own all the property it needs for the widening by the end of year.

The county has condemned four buildings that businesses now occupy along Lewelling, MacNeil said.

Among these is the Shamrock Realtors office, which has been at 153 Lewelling for 42 years.

“We were going to tie our bodies to the building,” joked Realtor Rosalyn Esmeyer. “We’re in therapy about it.”

This building will be razed, and Shamrock Realtors will move into the craftsman-style 1930s bungalow behind the office.

“We’re hoping to keep the same address,” added Rosalyn’s Realtor husband, James Esmeyer.

They had rented out the bungalow to a couple who are also being forced to move because of the road widening. James Esmeyer added that a nearby barber shop, which the county also condemned, already has packed up and moved out. About a month ago, he said, the county bulldozed an empty building a block west.

A block east of them are two other successful businesses that also now have to move from Lewelling due to the widening.

Over the past two years, Martha Barragan has established Martha’s Hair Salon as a neighborhood favorite.

“It’s been really good here,” she said, “because there is a lot of clientele including from the schools close to here.”

She said she looked for a new location along Hesperian Boulevard from A Street to San Leandro, but the rents were too high. She planned to visit two more locations, along Foothill Boulevard and A Street, in hopes of finding something suitable. She said she expects the steepest costs in the move to be the plumbing and electricity in outfitting a space to serve a salon, which she said the county will not be able to assist with.

The county plans for Pacific Gas & Electric and communications companies to begin laying underground pipes and cables next spring.

The Daily Review: http://www.insidebayarea.com

Fight seems imminent: Tracy Press, 8/6/07

By Rob L. Wagner

Tracy is prepared to use eminent domain to take land from so-far unwilling homeowners so Grant Line Road can be expanded.

Photo by Glenn Moore

Stephen Lum and Margarita Ruiz own a small home at 81 E. Grant Line Road. The city considers East Grant Line Road between Parker Avenue and MacArthur Drive a major arterial street that requires two lanes in each direction, according to a city report.

A portion of Grant Line Road in front of the Lum and Ruiz home narrows to a single lane in each direction with no curb, gutters or sidewalk. The area creates a traffic bottleneck, according to the report.

The city is seeking a 1,750-square-foot right-of-way and a 210-square-foot temporary construction easement on the 8,750-square-foot parcel.

The City Council at 7 tonight will consider whether to start with eminent domain proceedings to buy the property via court action. The council meets in the council chambers at 333 Civic Center Plaza.

Lum and Ruiz were out of town Monday and unavailable for comment.

Zabih Zaca, senior civil engineer for the city, said the gravel portion at the front of the property and “about half the front lawn” will be taken via eminent domain. The construction easement will be returned to the owners once the widening of the street is completed.

The city is finishing or has reached agreements with property owners to purchase 13 other parcels along Grant Line, Zaca said.

Negotiations with Lum and Ruiz started a year ago. The city offered Lum and Ruiz $50,000 for the property and offered to pay up to $5,000 for the couple to hire an independent appraiser.

The city sent several notices to Lum and Ruiz regarding the property and received one letter Feb. 22. According to the letter, the couple wanted the city to accept their independent appraiser as the fair market value of the property. The city responded that it would consider the couple’s appraisal in conjunction with the city’s own independent appraisal. The city hired an independent appraiser to examine the property.

“We are spending public funds, and the appraisal must be in the best use of those funds,” Zaca said.

The couple was notified in a June 29 letter from the city attorney that the city could begin eminent domain proceedings.

Zaca said the $50,000 offer is good “up until the last minute” before eminent domain is effective.

Tracy Press: http://www.tracypress.com

The Limits of Anti-Kelo Legislation: Reformers are trying to outlaw eminent domain abuse. But will the laws they’re passing be effective?: Reason Magazine, Aug./Sept. 2007

By Ilya Somin

In Kelo v. City of New London (2005), the U.S. Supreme Court allowed the government to condemn property and transfer it to other private owners in the name of “economic development.” Upholding the forced transfer of land in New London, Connecticut, to private developers, the Court ruled that virtually any potential public benefit satisfies the Fifth Amendment’s requirement that the authorities can take property only for a “public use.” Traditionally, a public use had meant a government-owned facility or a public utility with legally mandated access for the general public. With an economic development taking, property is simply transferred from one private party to another, without any public access requirement. Although the traditional definition of public use had already been vastly expanded by previous decisions, Kelo drove the change home to the general public.

The ruling generated more and broader opposition than any other Supreme Court decision of the last several decades. A 2005 survey by the Saint Index, a polling organization specializing in land use issues, showed that 81 percent of Americans opposed Kelo, a backlash that cut across traditional partisan, ideological, and racial lines. Eighty-five percent of Republicans opposed Kelo, but so did 79 percent of Democrats and 83 percent of independents. The decision was likewise opposed by 82 percent of whites, 72 percent of blacks, and 80 percent of Hispanics.

Politicians on both the right and the left hurried to condemn the Court’s ruling. Though the decision was supported by all the liberal justices and opposed by most of the conservatives, Democratic National Committee Chairman Howard Dean denounced “a Republican-appointed Supreme Court that decided they can take your house and put a Sheraton hotel in there.” California Democratic Rep. Maxine Waters, a prominent African-American liberal, called Kelo-style takings “the most un-American thing that can be done.” On the other end of the political spectrum, the conservative talk show host Rush Limbaugh condemned the decision for letting the government “kick the little guy out of his and her homes and sell those home[s] to a big developer.”

Many observers expected the backlash to prompt legislation that would make judicial protection against economic development takings unnecessary. In a fall 2005 Harvard Law Review article, federal appeals court judge Richard Posner, arguably the nation’s most respected judge and most prominent legal scholar, wrote that the political response to Kelo is “evidence of [the decision's] pragmatic soundness.” Judicial action would be unnecessary, Posner suggested, because the political process could take care of the problem. In his confirmation hearing before the Senate, future Supreme Court Chief Justice John Roberts said that the public reaction to Kelo shows that Congress and state legislatures “are protectors of the people’s rights as well” and “can protect them in situations where the Court has determined, as it did…in Kelo, that they are not going to draw [the] line.”

Although important progress in protecting property rights has been made in some states, such predictions turned out to be seriously overstated. The Kelo backlash has not been as effective as many expected. Too often, cosmetic changes have taken the place of real reform.

Flawed Reforms in the States
Nearly every state legislature has either adopted or considered legislation to curb the use of eminent domain since Kelo, but only 14 have enacted laws that provide significantly increased protections for property rights. Several other states have enacted effective reforms by popular referendum. Seventeen state legislatures have passed laws that purport to restrict eminent domain, but in reality accomplish very little.

Legislators have found many different ways to produce bills that appear to protect property rights without actually doing so. Texas, for example, banned “economic development” takings but continues to permit them under other names, such as “community development.” The most common tactic, used in some 16 states’ post-Kelo laws, is to allow economic development condemnations to continue under the guise of alleviating “blight.” While it may sometimes be desirable to use eminent domain to transform severely dilapidated areas, many states define “blight” so broadly that almost any neighborhood qualifies. A 2003 Nevada Supreme Court decision concluded that downtown Las Vegas was blighted, thus allowing the authorities to condemn some property that local casinos coveted for a new parking lot. A 2001 New York appellate decision held that Times Square was blighted, paving the way for the condemnation of property to build a new headquarters for The New York Times.

Unsurprisingly, the states most in need of reform tended to be the ones least willing to adopt it. Consider the 20 states that have the largest numbers of Kelo-like condemnations, according to data compiled by the Institute for Justice, the public interest law firm that represented the property owners in Kelo. (Full disclosure: I have worked with the Institute for Justice on several cases and authored an amicus brief in Kelo.) Thirteen of them have enacted either ineffective legislation or none at all. Two states with otherwise effective reforms exempted the areas where most condemnations occur. Pennsylvania’s reform includes a five-year exemption for Philadelphia and Pittsburgh, and Minnesota’s exempts the Twin Cities area, also for five years. By the time these exemptions expire, the political uproar over Kelo likely will have subsided, making it easier to extend them without much public scrutiny.

The same pattern holds in those states with the largest numbers of “threatened” condemnations to transfer property from one private party to another. In these cases, the government used the possibility of condemnation as leverage to force owners to sell but did not actually go through with a taking. Fourteen of the top 20 states on that list have failed to enact reforms that significantly constrain Kelo-like takings. Major states with extensive records of eminent domain abuse that have failed to enact effective reforms include California, New York, New Jersey, and Texas.

Federal Reform Efforts
Similar shortcomings have bedeviled reform efforts at the federal level. An executive order issued by President Bush in June 2006, for example, banned federal agencies from using eminent domain solely for “private development” but allowed takings for private owners who promise to use the land for both private and “public” development. Since the Supreme Court in Kelo upheld the New London project partly because the city claimed its takings would benefit the public by raising tax revenues and stimulating the economy, Bush’s order does little to limit the decision’s reach. Virtually any economic development taking can be rationalized on the ground that it might benefit the public as well as the new owner. This is the exact argument that the Supreme Court majority endorsed in Kelo itself. Since most takings are initiated by state and local governments rather than by federal officials, even a better-worded presidential order would have had only limited effect.

The Bond Amendment, introduced by Sen. Kit Bond (R-Mo.) and enacted by Congress in 2005, has been similarly ineffective. While the Amendment purports to withhold federal funds from state and local development projects that use Kelo-style condemnations, it applies only to takings that “primarily benefit…private entities.” Like Bush’s executive order, it can be easily circumvented simply by claiming the project in question benefits the general public. It also specifically exempts condemnations intended to alleviate “blight.” As already noted, broad blight designations are often used to legitimate what are in reality economic development takings.

In November 2005, the House of Representatives overwhelmingly approved the Private Property Rights Protection Act, a measure that would deny federal “economic development” funds to state and local governments that engage in Kelo-like takings. The bill might have been at least somewhat effective if enacted. Although its coverage extended to less than 2 percent of federal funds flowing to state and local authorities, it might have had a significant impact on jurisdictions with an unusually heavy dependence on federal economic development funds.

Unfortunately, the measure was bottled up in the Senate by Judiciary Committee Chairman Arlen Specter (R-Pa.) and eventually died there. In May of this year, the House Agriculture Committee of the new Democratic-controlled Congress approved a similar bill. Even if it passes the House, which at press time had not yet voted on the bill, its fate in the Senate is uncertain at best, since most Democratic senators had acquiesced in tabling the earlier legislation.

The Impact of Political Ignorance
Why has the Kelo backlash fallen short in so many legislatures? Some blame the developers and local politicians who benefit from condemnations. Those groups have indeed spearheaded opposition to reform. But their efforts do not by themselves explain how narrow interest groups could overcome the opposition of the vast majority of the electorate. According to the 2005 Saint Index poll, 63 percent of Americans not only opposed economic development takings but opposed them “strongly.” In a 2006 Saint Index survey, 71 percent of respondents supported laws banning condemnations for “private development,” and 43 percent “strongly” supported such reforms. If even 10 or 15 percent of those voters who say they “strongly” support banning economic development takings would be willing to change their votes based on the issue, they would be a voting bloc constituting about 4 percent to 7 percent of the electorate. That is more than enough to swing many close races, and is probably enough to outweigh the political influence of those developers and local officials who support sweeping eminent domain authority.

The main reason public opposition to Kelo has not had more impact on policy is probably public ignorance. It takes specialized knowledge to distinguish an effective “anti-Kelo” bill from one that is mostly for show. Most voters lack both the ability and the incentive to scrutinize such details closely. Surveys consistently show that most citizens are ignorant of even basic facts about politics and public policy, and eminent domain is unlikely to be an exception to this rule. To take one of many examples, a poll taken not long before the 2004 elections found that 70 percent of the public was unaware of the recently approved Medicare prescription drug benefit, the largest new domestic program in almost 40 years.

Developers and other interest groups, by contrast, have much greater incentive to inform themselves about the details of pending legislation. Thus, politicians can appease voters angry about Kelo by passing laws to “reverse” it, while simultaneously avoiding the ire of development interests by not giving those laws teeth. This dynamic may get stronger as the anger generated by Kelo wanes and public attention shifts to other issues.

The Referendum Exception
Political ignorance helps explain why post-Kelo reforms enacted by referendum generally have been more effective than those enacted through the legislative process. In 2006 voters in 12 states considered ballot initiatives to ban or curtail the condemnation of private property for economic development. Ten of the 12 passed, all by lopsided margins, with support ranging from 55 percent to 86 percent. The only two that failed were proposals in California and Idaho that were tied to complex and controversial “regulatory takings” reforms that might have curtailed a wide range of government actions. Even so, the California reform proposal nearly passed, losing by a narrow margin of 52 percent to 48 percent. Of the 10 initiatives that did pass, at least six (in Arizona, Florida, Louisiana, Nevada, North Dakota, and Oregon) and probably a seventh (in Michigan) are worded strongly enough to provide real protection for property owners beyond that provided by pre-existing law.

Referendum initiatives tend to be more effective than legislative reforms because they usually are drafted by activists instead of politicians. That is a tendency, not an absolute rule: Some state legislatures have enacted strong reforms. Several of these states had made little or no use of economic development takings-New Mexico, South Dakota, and Wyoming enacted very strong post-Kelo reforms despite (or perhaps because of) the fact that they had not recorded a single Kelo-like condemnation in recent years. Still, several state legislatures that passed effective reforms had made fairly extensive use of economic development takings. Notable examples include Florida (which enacted the strongest reform legislation of any state), Indiana, and Virginia.

Unlike state legislators, property rights activists do not need to appease powerful pro-condemnation interest groups. They therefore have little incentive to exploit political ignorance by passing off cosmetic legislation as meaningful reform. Of the six post-Kelo initiatives that will probably prove effective, four were drafted by property rights advocates in states where referendum questions can be put on the ballot without first being approved by the state legislature. By contrast, the three relatively ineffective new laws approved by referendum were submitted to voters by state legislatures and suffered from the same flaws as other legislative reforms. The truly meaningful difference is not so much that between referenda and ordinary legislation as that between citizen-initiated referenda and all types of reform that require legislative approval.

Political ignorance also helps explain why the backlash against eminent domain occurred when it did. Many Kelo defenders complain that the backlash is grossly excessive because the case made little change in existing precedent. In two previous decisions, Berman v. Parker (1954) and Hawaii Housing Authority v. Midkiff (1984), the Supreme Court already had ruled that the government could condemn property for almost any reason, even if the land taken was to be transferred to private parties. In the years since Berman upheld “blight” condemnations, hundreds of thousands of people have been forcibly expelled from their homes as a result of economic development and “urban renewal” takings. And in Midkiff, a unanimous Court held that the government could take property for any reason that is “rationally related to a conceivable public purpose,” which can mean almost anything.

While policy makers and other experts were well aware of these facts, ordinary citizens probably were not. For most, the extensive publicity surrounding Kelo was probably the first time they realized that private property, including homes, could be condemned and transferred to other private entities just to promote “economic development.”

Even if they had been aware of Berman and Midkiff, voters might not have realized that those earlier decisions gave the government a blank check to condemn virtually any property for virtually any reason. Berman upheld the condemnation of property in Washington, D.C., that was “blighted” in the layperson’s sense of the word: dilapidated, dangerous, and disease-ridden. Midkiff approved a complex Hawaii land reform scheme that sought to condemn the property of a small number of wealthy landowners so it could be transferred to tenant farmers. Few ordinary citizens, even among those who remembered these cases, were likely to understand that the reasoning behind them was broad enough to justify condemnation of property for reasons that went far beyond the specific facts of the two decisions. Kelo defenders were right to claim that the decision made little change in existing precedent. But they were wrong to assume that the general public knew about and approved of the pre-Kelo status quo.

Prospects for the Future
Referenda may often be preferable to legislative reforms, but they are far from a panacea. Several of the initiatives enacted last fall are flawed, and 26 states do not permit lawmaking by referendum at all. There is also the danger that pro-condemnation forces will use the referendum process for their own purposes. The California League of Cities (CLC), a coalition of local governments seeking to preserve their power to condemn property, is trying to place an essentially meaningless eminent domain “reform” on the state’s November ballot as a way of pre-empting a stronger referendum initiative sponsored by property rights advocates. The CLC initiative cleverly includes a provision stating that it would supersede any other eminent domain referendum enacted on the same day, so long as the latter gets fewer votes than the CLC proposal.

The cities’ effort may well succeed, since few voters are likely to oppose the CLC-sponsored initiative; after all, on its surface it seems to provide at least some protection for property rights, a goal most voters favor. Even if that protection is insufficient, voters are unlikely to realize that the initiative will actually harm property owners rather than help them. The CLC effort offers additional evidence that at least some opponents of meaningful eminent domain reform are trying to exploit political ignorance for their advantage.

The political response to Kelo has led to some important reforms. But it has also produced many ineffective or meaningless laws. The reaction to Kelo is a striking example of a public backlash against an unpopular judicial decision. But it also shows that backlash politics has its limits.

 

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COPYRIGHT © 2010 Arthur J. Hazarabedian, Esq.