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CALIFORNIA EMINENT DOMAIN LAW BLOG

Eminent domain discussions raise questions over land owner rights: Ledger Dispatch, 10/23/07

By Kelly Enos

Recent eminent domain proceedings flying around Amador County – and a particularly controversial case in Plymouth – have some property owners concerned that they could lose what they have worked to keep for years.

“I wasn’t really sure what it meant when I first heard the term,” said Shenandoah Valley resident Jose Villa, “but with all this going on in Plymouth I started wondering if any city could obtain any property because they wanted to.”

Eminent domain, also referred to as “condemnation,” is the power of local, state or federal government agencies to take private property for public use as long as the government pays a just compensation. The government can exercise this power even if the property owner does not wish to sell, as outlined in the Fifth Amendment of the Constitution and in article 19, section one of the California Constitution, which uses examples such as schools, roads, libraries, police and fire stations as a guideline for public use.

According to Arthur J. Hazarabedian, an attorney with the California Eminent Domain Law Group, the term “public use” is interpreted very broadly by the courts.

“The project need not be actually open to the public to constitute public use,” he said. “Instead, generally only a public benefit is required to the courts and satisfies the public use requirement of federal and state constitutions.”

Hazarabedian adds that although government agencies have the power of eminent domain, successful challenges to the government are occasionally made.

“Such challenges, however, are the exception, not the rule. Most usually result in a delay rather than an outright prevention of the governments right to take,” he said.

The city of Plymouth has jostled the eminent domain issue from agenda to agenda regarding an easement that is needed to complete a pipeline project that will allow treated water to be brought into the city via the Tanner reservoir.

The properties in question are owned by Ron and Linda Matulich and Russell and Doris Evitt. Although the Matulich family had agreed to the terms of the easement contract, according to the city’s legal counsel Shasta Greene, the contract cannot be completed since part of the Evitt property is located on the Matulich side. The matter of the easement and eminent domain proceedings will once again be heard during the city council meeting tomorrow.

Proposition 90 that ran on the 2006 ballot would have banned the use of eminent domain seizures for private developers but was rejected by voters. According to Brian Heaton, a communications specialist with the League of California Cities, an adoption of statutory and constitutional reforms are the strategic focus for the board this year.

“The board voted unanimously to continue supporting its strategy of pursuing eminent domain reform,” he said, “both legislatively and in an initiative processes.”

The League of California Cities intends to ensure that federal legislation addressing the issue of eminent domain does not impact states such as California.

“California has strong laws that limit the use of eminent domain and have protection for property owners,” Heaton said. “We will oppose the federal private property rights implementation act that is being promoted as a response to a recent supreme court ruling since it does not address condemnations, eminent domain or economic development projects in any way.”

An June 2008 ballot initiative that will be known as the California Property Owners and Farmland Protection Act would prohibit public agencies from taking private property from one owner to give to another, while preserving the government’s right to utilize eminent domain under specified conditions.

In an attempt to contact those who are immediately involved with the proceedings in Plymouth, the Ledger Dispatch was unsuccessful.

Villa plans to attend the meeting in Plymouth to better understand how the city can control property owners in that manner.

“This is of interest to me since I know that the county is planning to develop all around Plymouth and I’m not sure if that will include my land,” he said.

He added that if future development begins to infringe on his area, he and his family will relocate.

“We moved here from the Bay Area 13 years go,” he said. “We wanted to see open spaces and trees instead of malls and concrete. What a shame that the government can use something like this to turn tables in their favor.”

Ledger Dispatch: http://www.ledger-dispatch.com

Man battles air force base over 13 acres: Contra Costa Times, 10/17/07

By Danny Bernardini

A Fairfield man may end up doing battle in federal court against Travis Air Force Base, which is seeking to take 13 acres of his land under eminent domain to bolster security at the south gate of the base.

Bill Maher, 80, was served with legal papers last week giving him until Nov. 1 to cede his land to the Air Force in exchange for $261,000. If he does not, the case will head to federal court.

For years, Maher has received letters from the base regarding its efforts to claim some of his 300 acres of pasture land along Peterson Road under eminent domain for “national security.”

Maher said he would read the letters, attempt to discuss the issue with officials at Travis and, when he got little response, would wait for further word.

“It’s been about eight or 10 years they’ve been threatening me, but they change the acreage (they want) every year,” he said. “I would go along with some of their needs if they would cooperate. The letter they wrote me asked me to be willing to negotiate. It’s them that’s not willing.”

Further word, and what may turn out to be the final word, came Friday when Maher received a letter from the U.S. Department of Justice alerting him that a notice in condemnation had been filed and if he did not agree to the terms within 20 days, the case would end up in court.

Kelli Taylor, an assistant U.S. attorney, said the filing came after several notices and interaction with Maher. She said extensive appraising of the land has been done and $261,000 has been paid to the courts as compensation for Maher giving up his land.

“This was not a decision that was made overnight,” Taylor said from her Sacramento office. “The court is now involved. At any time, if he wanted to resolve it, we can.”

The Travis Public Affairs Department would not comment on the issue, providing a prepared statement instead.

“Travis AFB is working through the legal process to obtain 13 acres on the southwest corner of the installation to increase force protection of the base and local community. This ongoing effort has been in the works for over two years starting in 2004,” it reads.

The 13 acres in dispute is a strip of land about 400 feet wide and 1,200 feet long running alongside Peterson Road that Maher purchased in the early 1980s. Within the strip is cattle grazing land and a home he rents out for about $10,000 per year.

The problem for Maher is that his property is also near the south gate of Travis, an area needed for base expansion.

A copy of the condemnation documents, obtained by MediaNews, explains the acquisition as “required for both Anti-Terrorism/Force Protection and personnel safety reasons. Without this land, Travis Air Force Base will continue to lack facilities for proper commercial vehicle inspections and Security Force personnel will remain at risk.”

Maher said he understands the need to acquire some land to comply with national security, but he said the 13 acres is worth at least $800,000.

He also is angry that the land they want includes the house he rents — an issue on which he said Travis will not budge.

“They don’t indicate they would give one penny more,” Maher said. “They want the best part of the property. I don’t know what to do. I guess I’m going to have to get an attorney.”

Maher said he would like Travis to buy all his land, which he said is worth more than $2 million. But he said all attempts to negotiate with Travis fell on deaf ears.

“We all know they have the money to buy that property, rather than keep me tied up like this. They could sell the portions they don’t need,” he said. “I don’t like it at my age; I don’t want to get involved.”

Maher said there are several wrinkles involved that are making the situation difficult. The way it is proposed, the acquisition would cut off two entrances to his property, one of which is 108 feet wide, leaving him only a 30-foot-wide driveway.

“It diminishes the value of the property,” he said.

Also troubling for Maher is that 180 acres of his land is already under an easement because it’s underneath the flight path of Travis aircraft. He fears that rules relating to that easement may prevent him from building another house he can rent out.

Maher also said he had the entire 306 acres sold to a private buyer for $2.25 million, but the buyer backed out after realizing the base’s plans. He said the buyer had already submitted two $50,000 deposits that he now wants back.

Taylor confirmed that the buyer is named in the eminent domain filing but couldn’t comment on any repayment.

“That’s a determination made by the court after the value (of the land) is established,” Taylor said.

Overall, Maher said he’s as frustrated about how Travis has interacted with him as he is about losing his land.

“It just goes in one ear and out the other,” he said. “They’re the most ruthless organization I’ve ever dealt with. I couldn’t imagine a government agency treating a taxpayer this way.”

Contra Costa Times: http://www.contracostatimes.com

Owner on Mooney fights Caltrans on eminent domain: Visalia-Times Delta, 10/17/07

By Gerald Carroll

A Visalia property owner says he stands to lose more than $1 million if Caltrans follows through on the eminent-domain seizure of a strip of his Mooney Boulevard parcel.

Dave McWilliams’ 33,000-square-foot property is located in the 3700 block of South Mooney Boulevard, near Costco and Circuit City. On Sept. 11, Tulare County Superior Court Judge Patrick O’Hara ruled that Caltrans could acquire a 4,874-square-foot portion of the property to make room for a bus stop.

The stop, which includes a bus bay, is part of an overall widening project for that portion of Mooney. Caltrans would take the front 10 feet of a tile store but leave the rest to McWilliams.

“That bus stop will seal off any access to my property from Mooney,” McWilliams said Tuesday, “rendering it worthless and impossible to sell.”

Because of the parcel’s proximity to a major retail center, McWilliams said, he’s received “hundreds” of offers to buy that spot over the years.

“The offers have been anywhere from $700,000 to nearly $1 million,” he said. “That’s what I stand to lose here.”

Caltrans offered $87,732 for the strip of property nearest Mooney. But its appraiser placed a value of zero dollars on the building, court documents say.

The building is insured for $224,000 and is “probably worth a lot more than that,” the owner said.

The no-value appraisal represents “theft, plain and simple,” McWilliams said.

The building now is rented by Rubio’s Ceramic Tiles. McWilliams said he stands to lose $45,000 a year in rent.

No one will buy the property without direct access to Mooney, he said.

“It’s a lost cause,” McWilliams said.

Rubio’s will be given a “relocation allowance” of $10,000 or more by Caltrans, Rubio’s Manager Oswaldo Angulo said.

The tile shop will relocate to 1324 S. Mooney Blvd. by the end of the week, he said.

Caltrans relocation agent Rita Velazco-Dias visited McWilliams’ property Tuesday with Walnut Creek-based appraiser Roland Burchard and other Caltrans officials. McWilliams, who said he was confused by the appraiser’s presence, denied the officials access.

“Why bring in an appraiser when Caltrans has already appraised the value of the building as zero and has already seized the land?” McWilliams asked.

The Caltrans representatives called Visalia police. After extensive discussions with the parties involved, Visalia Police Sgt. Corey Sumpter advised McWilliams to seek legal advice.

“No appraisal will take place today,” he told Burchard.

No arrests were made.

Caltrans spokeswoman Gloria Sammaniego said the legal process involved in the eminent-domain proceedings has not reached the point of physical eviction.

“The [judge's] ruling does allow us to enter the property at any time and take any actions deemed necessary,” Sammaniego said. “We chose the most logical course today under the circumstances.”

Sammaniego said Caltrans officials will meet today to decide what their next step will be.

Visalia-Times Delta: http://www.visaliatimesdelta.com

Aggressive use of eminent domain at issue in Riverside City Council races: The Press Enterprise, 10/13/07

By Doug Haberman

RIVERSIDE – Since 2004, when Dom Betro, Art Gage and Steve Adams took seats on the City Council, the Riverside Redevelopment Agency has filed 18 eminent domain lawsuits to help spark revitalization downtown and in other parts of the city.

The council acts as a board of directors for the agency, whose mission is to eliminate blight and boost the city’s economy.

Betro, Gage and Adams are all seeking reelection Nov. 6. Their opponents and voters have raised eminent domain as an issue in the races.

From 1990 through 2003, Riverside city councils voted 12 times to authorize the Redevelopment Agency’s use of eminent domain, though the city was unable to say how many lawsuits the agency filed as a result of these votes.

Since 2004, the council has voted 13 times to authorize the agency’s use of eminent domain. Sometimes an authorization involved several parcels and multiple owners, and the agency filed more than one lawsuit as a result.

The 18 eminent domain lawsuits filed since 2004 were to acquire a total of 13.33 acres. The city comprises almost 52,000 acres.

Nine of the cases have settled, often for more than the agency appraisal on the property. For example, the agency appraised 2.7 acres at the California Square shopping center at $1.8 million but settled its lawsuit by buying the land for $2.9 million.

The other nine cases are heading to trial on the amount the agency will have to pay the owners.

None of the parcels in the 18 cases held owner-occupied homes. The agency has never used eminent domain to acquire an owner-occupied house. City law makes it difficult to do so.

Council members who vote to use eminent domain on an owner-occupied house to sell the land to a developer would be committing political suicide, Adams said.

Public agencies use eminent domain to acquire private property from owners unwilling to sell. They typically employ it to buy land for public uses, such as parks, libraries and street-widening projects, but they can also use eminent domain for redevelopment projects.

Council members and city staff said the Redevelopment Agency uses eminent domain almost exclusively after commercial properties have been problems — such as motels and liquor stores on University Avenue — or have been rundown or sat unused for years.

And it is used as a last resort after negotiations with property owners have failed, they said.

Without it, they said, important projects meant to improve life in Riverside, such as the renovation of the historic Fox Theater for use as a regional performing arts center, would never come to fruition.

“We only do it when we really feel there’s a public benefit at the end of the road,” Betro said.

This project at Market and Third streets was acquired by the developer without the use of eminent domain, the developer said.

Property-Rights Concerns
Property owners involved in the lawsuits and opponents of eminent domain for economic development said the city is taking away property rights and should work with landowners.

“It’s just absurd to me, this idea we have to have eminent domain to make development happen,” said downtown commercial property owner Rob Freeman.

He grew especially concerned about eminent domain when the agency threatened in 2005 to use it on Adams Plaza, which is not blighted, Freeman said.

City Manager Brad Hudson said relying on the private sector alone hasn’t worked in Riverside.

“There’s a reason why downtown sat there like it did for 20 or 30 years,” Hudson said.

Developers on their own will do little in an aging city such as Riverside with historic buildings that are expensive to retrofit and restore, ground contamination issues, scarce land for parking, and small parcels held by many different owners, Hudson said.

The Redevelopment Agency can tackle these issues to make properties usable by developers, he said.

Under previous councils, the agency used eminent domain to assemble land for Riverside Plaza, University Village and the Riverside Marketplace.

Basis for Eminent Domain
Los Angeles-based developer Mark Rubin is building a 275-unit condominium complex bounded by Market, First, Main and Third streets, where used-auto dealers, mechanics’ garages and a few rental houses used to sit.

He bought portions of the land himself. But some property owners set such high prices for their parcels that it made no economic sense for him to buy, Rubin said Tuesday as he walked around the property. That’s when he asked for the agency’s help.

“If there weren’t eminent domain, this thing would be in disrepair for another 50 years,” he said.

Across Market Street from Rubin’s project, at Market and Third streets, another Los Angeles developer, Alan Mruvka, is building 10 live-work units on land he bought without the aid of eminent domain. He plans to build 109 condominiums on the block bordered by Fairmount Boulevard, First, Market and Second streets, which he purchased.

Because many of the properties were owner-occupied houses, Betro and the Redevelopment Agency insisted he buy them himself, Mruvka said.

But he said the agency’s use of eminent domain to acquire commercial property is necessary at times if Riverside is to progress.

“Some people are unreasonable,” Mruvka said. “They won’t take a reasonable price.”

Changes Sought
Freeman, the eminent domain foe, said the city never seems to pick local property owners to do major redevelopment projects. It gives the impression the council favors certain developers and cuts secret deals for them, he said.

For that reason, he favors changing the law to make the Redevelopment Agency wait 10 years after it acquires property through eminent domain before it can transfer it to a developer.

“That takes away the whole idea of the backroom deal,” Freeman said.

Betro said the agency uses an open, competitive process to find developers for projects. It chooses them based on how closely their proposals fit the agency’s guidelines, and it favors developers who ask for little or no agency subsidy, he said.

One of the agency’s main eminent domain targets in the past three years has been property owned for dozens of years by the Garner family, including the former Ab Brown garage downtown and three parcels on Merrill Avenue across from Riverside Plaza that held boarded-up buildings, including an old blood bank.

Sarah Garner, a Carlsbad resident who helps manage her family’s properties, said she has felt frustrated by the agency’s move to acquire the property.

“We wanted to do projects on all those parcels ourselves,” Garner said.

Gage said the Garner parcels and some of the motels on University were a clear example of blight. Eminent domain became necessary, he said, when the agency and the Garner family couldn’t reach a deal.

“When you’ve got something really nasty, it’s got to go,” Gage said.

The Press Enterprise: http://www.pe.com

U.S. to have say in power line siting: Los Angeles Times, 10/3/07

By Janet Wilson

The U.S. Department of Energy on Tuesday designated nearly all of Southern California, parts of Arizona and much of the northeast as “national interest” energy transmission corridors, an action that allows federal regulators to approve new high-voltage towers and lets private utilities condemn homes and land even if a state agency won’t.

The action is potentially an enormous boost for the Los Angeles Department of Water and Power, Southern California Edison Co. and San Diego Gas & Electric Co., all of which have faced fierce local opposition to proposed transmission lines that would stretch for hundreds of miles through numerous communities and counties.

Paving the way for more power, LA Times

All California utilities are up against a tough state deadline to obtain 20% of their power from renewable sources by 2010, which in most cases means shipping in wind, solar or geothermal energy from elsewhere.

Energy Secretary Samuel Bodman, following direction from President Bush and Congress, designated six California jurisdictions in their entirety as “national interest electric transmission corridors,” including Los Angeles, Orange, San Bernardino, Riverside, Kern and San Diego counties.

“We’re not talking about a huge new transmission tower on Wilshire Boulevard,” said Mary O’Driscoll, spokeswoman for the Federal Energy Regulatory Commission. But it’s not clear how newer, fast-growing communities in the Antelope Valley or the Inland Empire would be affected. Small towns in rural areas and private land preserves around national parks could be early targets.

Kevin Kolevar, assistant secretary of the Energy Department’s Office of Electricity Delivery and Energy Reliability, said “critical areas of congestion” had been identified in both the southwest and the northeast by federal energy researchers, including coastal Southern California and the Inland Empire. Under the Energy Policy Act of 2005, the federal energy commission will now be able, as a last resort, to designate badly needed transmission corridors between states to ensure reliable power reaches those areas, Kolevar said. The commission would act only if a state had not acted on an application by a utility within a year or had turned it down, he said.

A spokeswoman for the California Public Utilities Commission said its staff was researching the decision. But utilities and other business groups, including the California Chamber of Commerce and Edison Electric Institute, a national electric industry lobbying group, praised the announcement. Residents in rural areas expressed concern.

“If you’re building a power plant, you tend to have lot of concern within one community; if you’re building a transmission line you tend to have 1,000 miles of those kinds of concerns,” Edison International Chief Executive John Bryson said in a recent interview. Edison is the parent company for Southern California Edison. “We’re enormously fast-growing in Southern California, we serve . . . four of the 10 fastest-growing counties in the United States. So we’re going to need a real big increase in supplies,” he said.

Although Edison International is prepared to spend as much as $4 billion on new transmission lines in the next five years, Bryson said the utility recently suffered “a real setback in Arizona” because of the state’s unwillingness to provide more power to California. Edison International was recently denied approval by Arizona regulators to build a new transmission line between an area of the state, which is covered by Tuesday’s decision, and Southern California.

“We’re evaluating the Arizona situation, and I think in the view of Congress this was enough of an issue, the parochialism and state balkanization, that a law was adopted . . . so that all parties can apply to FERC,” Bryson said. “No one has done that yet. It’s something you don’t do lightly because in our case we would like to work very well with Arizona and California.”

DWP Board President H. David Nahai also reacted cautiously. “The energy corridor designations released today were subject to a lengthy public process, with input from a variety of stakeholders. We are now evaluating these new designations and determining the extent to which they will facilitate the transmission of renewable energy to Los Angeles,” Nahai said in a statement.

Residents in San Bernardino County’s Morongo Valley have been fighting a proposal by DWP to lace huge new towers through historic Pioneertown, the setting for countless television westerns and movies, and through bucolic private land preserves pieced together between Joshua Tree National Park and the San Bernardino National Forest.

Federal energy regulators would steer clear of public parks and forests unless sister agencies allowed transmission lines, putting more pressure on private lands as possible route sites, Kolevar said.

“We’ve been expecting the federal preemption card to be played . . . and we’re going to fight it,” said Danny Sall, 59, a lifelong resident of Pioneertown whose home has been identified on DWP maps as possibly being in the route of a proposed transmission line. It is not yet known if Tuesday’s decision applies to that line because it may not link up to out-of-state power.

“People live out here because they don’t want the congestion and the traffic; they’re interested in a different quality of life,” Sall said. “Constitutionally I think we should be able to do that without some conglomerate 100 miles away coming in saying, ‘Ha ha, this is for the greater good because we have more heads to count, so we’re taking your land.”

Earlier this year, members of Congress tried unsuccessfully to roll back the new powers of the federal commission. And some land trust groups are considering whether to file legal challenges.

But leading eminent domain attorney Gideon Kanner said there was a long established track record for governments to use eminent domain under the U.S. Constitution if it would benefit the greater good.

“This is another example of NIMBYism writ large,” he said of objections by desert and forest community residents to power lines. “They want to live in pristine, wooded areas, but they want to be able to jump in their car, too, and run down to the local Starbucks and get a latte powered by electricity.”

Los Angeles Times: http://www.latimes.com

COPYRIGHT © 2010 Arthur J. Hazarabedian, Esq.