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CALIFORNIA EMINENT DOMAIN LAW BLOG

Mooney Blvd. building to be demolished this morning: The Press-Enterprise, 11/28/07

By Michael Miyamoto

A commercial property in the 3700 block of South Mooney Boulevard will be demolished sometime this morning.

The property was taken over by Caltrans through eminent domain, despite protests by the owners and others.

A California Highway Patrol officer and an official from Caltrans were at the site to monitor the demolition project.

Joe Ortiz, the bulldozer operator, said he works for Delta Oil Field Services and Demolition of Woodland, Calif., near Sacramento. He said he need to wait for the property to be abated and a chain-link fence to be removed. But once those preliminaries are taken care of, the building will be razed.

The building housed Creative Tiles and the owner is Dave McWilliams. On Sept. 11, a Superior Court judge ruled that Caltrans had the right to proceed with eminent domain on the McWilliams’ property, which will be used for a bus stop.

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

Traffic Plan Could Level Million-Dollar Homes: NBC San Diego, 11/21/07

NBC San Diego

TORREY PINES, Calif. — Relief for North County commuters could mean nightmares for some high-end residents on properties along Interstate 5 — losing their homes to make way for new freeway connectors.

As many as 30 homeowners who live on Portofino Drive, which parallels Interstate 5 immediately to the west in the Torrey Pines area, could be subject to eminent domain in a project to install two more connectors at the freeway’s interchange with state Route 56.

The connectors would allow motorists to transition directly from southbound I-5 to eastbound SR-56, and from westbound SR-56 to northbound I-5.

Currently, motorists must exit onto surface streets to reach ramps connecting the freeways in those directions. The homes have carried sales values approaching and reaching $1 million in the past year.

Now, in the wake of the housing downturn and uncertainty over how many residences might be condemned under various proposed alternatives to completing the interchange, homeowners tell NBC 7/39 they dread the idea of having to relocate.

And, they fear they wouldn’t be able to sell their properties at desirable prices — if at all — until firm decisions are made on eminent domain.

“Right now, I feel like a hostage,” said Phillip Raphael, a Portofino Drive resident and member of the Torrey Pines Community Planning Board, which advises the city on land-use and civic issues in the area.

“I feel like a hostage because I’m not able to do the things to my home that I’d like to do in order to make it more comfortable,” Raphael said. “It’s like, do I do the remodeling, or don’t I do the remodeling? The other thing is, because of the (freeway) noise level, I need to get dual-pane windows.”

The interchange-completion alternative with the greatest impact involves so-called “flyover” lanes perched on columns reaching up to 70 feet high — to residents, a visual blight that will reinforce the image of a concrete jungle rising from the panorama of Carmel Valley and Los Penasquitos Lagoon.

“It’s been a wonderful place to live,” said Bob Sulit, a World War II veteran who’s owned his home on Portofino since 1970. “Nice community, nice neighbors, easy transport. But then, as the population builds up, something’s got to give. And we’re a section that’s been sacrificed.”

The City of San Diego/CalTrans project has numerous regulatory hurdles to clear and funding questions to answer — all the while, facing political and economic pressures. A draft environmental impact report is not expected until late next year.

The Torrey Pines Community Planning Board will convene a meeting on the issues Dec. 13, scheduled for 7 p.m. at Del Mar Hills Elementary School.

NBC San Diego: http://www.nbcsandiego.com

Property rights vs. rent control? Another eminent domain measure headed for ballot: The Sonoma Index-Tribune, 11/20/07

By David Bolling

If the California Property Owners and Farmland Protection Act sounds familiar, that’s because voters were led down a similar path just a year ago with Proposition 90, which sought to force government to pay property owners for any restrictive zoning.

That measure lost by a 47.7 to 52.3 percent margin, but not before putting state and local governments throughout California in a state of panic for fear it would have resulted in paralyzing lawsuits and catastrophic costs for any effort to govern the use of private land.

The new act, which for lack of any title shorter or more elegant is being referred to as CPOFPA, is sponsored by the Howard Jarvis Taxpayers Association, the California Farm Bureau Federation and the California Alliance to Protect Private Property Rights.

Backers of the measure, which would appear on the June 8 ballot if it qualifies, say it was written to address the abuse of private property rights by government use of eminent domain.
It specifically prohibits the taking of private property for a private use, and it removes any limits on the price a private owner may charge another person to purchase, occupy or use his or her real property. That provision applies to rents, and while it says that no one living in a currently rent-controlled residence can be deprived of rent control, it allows rents to be raised as soon as the occupant leaves.

A legal opinion provided by the League of California Cities argues that language in the measure would also prohibit water projects that condemn private land to provide water to other private interests, as virtually all California water projects currently do.

Critics of CPOFPA say it will incrementally eliminate rent control across the state and put all future water development projects at serious legal risk. Last week Sonoma Mayor Stanley Cohen appeared at a petition drive organized by the League of California Cities and put his name on a competing petition that is much more narrowly focused. That measure, the Homeowners Protection Act, would simply prohibit eminent domain of private property if the condemned property would then be transferred to a private developer.

Both measures follow the failure of the state Legislature to get a two-thirds vote for a constitutional amendment that would address the excessive use of eminent domain. Literature distributed by supporters of the Jarvis measure and posted on the Web site of Californians for Property Rights Protection, list three examples of the need for eminent domain reform. The first is the United States Supreme Court decision in Kelo v. City of New London, which held that the city of New London, Conn., could condemn a private home and give the land to a private developer to achieve urban renewal. That decision rocked property rights advocates across the nation and led to reform legislation in numerous states, including Oregon, which in 2004 passed a ballot measure requiring compensation for any restrictive zoning of private land.

Oregon then became a legal battlefield with 7,500 lawsuits filed over property rights, and that legal chaos led to a second initiative that passed this month and repealed much of the earlier measure.

The second case cited by CPOFPA proponents concerns an ill-conceived effort by the Yolo County Board of Supervisors to acquire a 17,000-acre ranch through eminent domain in order to protect its open space and water resources. That effort was ultimately abandoned after an outpouring of opposition, but it was seized on by property rights advocates as an example of the evils of eminent domain. Finally, the CPOFPA proponents point to Caltrans and its habit of condemning and buying private property for highway projects that never get built. The Orange County Register investigated the issue and discovered that Caltrans owns more than 12,000 acres of condemned land it hasn’t used, a third of it sitting empty for at least 30 years.

That said, most government analysts voicing public opinion on the subject are hard-pressed to come up with evidence of a prevailing problem. That’s one reason CPOFPA critics are calling it a “Trojan horse” to disguise efforts to end rent control in California. “For some people,” said Amy O’Gorman, regional public affairs director for the League of California Cities, “eminent domain is only a smoke screen to abolish rent control.”

The league-sponsored measure has until next week to turn in just under 700,000 valid signatures. If both measures qualify for the June ballot, it is likely that the non-redundant and non-duplicative provisions would prevail. It is also likely that if either or both prevail, further litigation may result. Stay tuned.

The Sonoma Index-Tribune: http://www.sonomanews.com

Squeezing small stores: San Gabriel Valley Tribune, 11/3/07

By Bethania Palma

AZUSA – Small-business owners said they will bear the brunt of redevelopment if the city moves forward with plans to buy their properties for projects, including larger national retail stores.

In September 2006, the City Council gave its redevelopment agency authority to use eminent domain to acquire businesses in redevelopment zones.

Although business owners say they are being pushed out unfairly, city officials defend the process as a way to generate tax revenues to pay for services.

“They’ve just taken a slice of the American dream away from generations to come,” said Bill Cortez, partial owner of Johnny’s Tow and Storage.

He said his father, Johnny Cortez, built the towing company 50 years ago and in 1966 bought the land at 812 N. Azusa Ave. Johnny’s has been there since.

This and other businesses could be displaced as plans to bring mixed-use condominiums, a Target, a Metro Gold Line station and other retail chains move forward.

“This has been emotionally trying for him,” Jim Cortez said of his father. “The family has always called this his sixth child.”

Now, business owners on their block feel uncertain and immobilized.

Eminent domain is a last resort, said Assistant City Manager Robert Person, but “it is a tool we have in our tool box and are going to use until it’s taken away from us in the form of a vote by the people.”

He said Azusa is in dire need of a broader tax base. Its main revenue generator is Costco, and with new residents moving into Rosedale, a corresponding demand for services will need to be met.

That will cost the city.

“We’re very, very dependent on Costco,” Person said. “That is very scary. We need to diversify our tax base and not have all our eggs in one basket.”

City officials said their plans call for the redevelopment agency to use eminent domain sparingly.

“It’s a very, very limited authority area,” said Bruce Coleman, economic and community development director.

So far, he added, the city has been able to negotiate settlements with almost all businesses affected by the proposal, rather than use the full force of eminent domain.

Jon Coupal, president of the Sacramento-based Howard Jarvis Taxpayer Association, said taking private property away from one owner to give it to another private owner is “totally un-American.”

He said his organization is sponsoring an initiative that will be appearing on California ballots next June to counteract the effects of Kelo v. City of New London, a 2005 Supreme Court decision that allowed a Connecticut woman’s home to be taken through eminent domain.

The decision set a precedent allowing cities to use eminent domain for redevelopment purposes, experts said.

The Fifth Amendment to the Constitution stipulates private property can be taken for public use with “just compensation.”

The 5-4 Kelo decision essentially determined the economic benefits of development constitutes public use, he said.

“Public use means public use,” and should be limited to roads, rails and other public infrastructure, Coupal said.

The president of Melco Steel Inc. in the Costco East redevelopment area agreed.

Michel Kashou’s property in 1100 block of West Foothill Boulevard has been visited by an eminent domain appraiser.

He and his neighboring business owners said they’ve been told a Lowe’s will be moving there. City officials said it could be a Lowe’s or Home Depot, and Costco might expand.

Kashou said he is trying to cooperate with the city’s plans, but doesn’t like the prospect of having his well-established business removed from its longtime site by the city to make way for another business.

“That’s not fair,” he said. “If Lowe’s wants this property, why don’t they come here and negotiate with us?”

While some residents welcome anticipated improvements in aesthetics and shopping, they recognize the fallout.

“I think it’s tragic,” said Ralph Lloyd, 73, of Azusa. “As smart as we are, we haven’t figured out what to do about the mom-and-pop shops.”

Dr. Martin Habern, whose chiropractic clinic neighbors Johnny’s, said his life has been turned upside down.

“All of a sudden, you realize the government can take what’s yours,” he said.

Habern said he’s been living out a “nightmare” since learning his business, which treats about 100 patients a week, was in a redevelopment zone.

“For me, the timing couldn’t have been worse,” the 53-year-old father of two said. “It’s been very disruptive. I own this place free and clear. I owe nothing, and I’ve been able to keep my fees low and take good care of people because of where I am.”

He said his goal was to retire some day and lease the building to another chiropractor. But now, he said, he’s just “waiting for the axe to drop.”

Jim Cortez similarly summarized his family’s situation.

“We don’t want to stop progress, but just don’t let progress run us over,” he said.

San Gabriel Valley Tribune: http://www.sgvtribune.com

Caltrans fences off, locks up Mooney business: Visalia-Times Delta, 10/31/07

By Gerald Carroll

A Visalia property owner can no longer access his Mooney Boulevard commercial property after it was fenced and padlocked Friday by Caltrans.

The state’s highway-construction agency on Sept. 11 acquired — through court-ordered eminent domain — a portion of David McWilliams’ 33,000-square-foot commercial lot. Caltrans made it official Friday by formally evicting McWilliams’ tenants, surrounding the building with tall, barbed-wire fencing and padlocking its gate, McWilliams said.

“They [Caltrans] are not paying any rent,” McWilliams said Monday, referring to the $2,850 per month he was collecting from long-term tenant Rubio’s Ceramic Tiles, which last week moved to a new location.

McWilliams said that he still needs to remove a $3,000 air-conditioning unit “and some other tools” that he can’t get to because of the lockout.

Caltrans spokeswoman Gloria Sammaniego said McWilliams was allowed in the building Friday to collect whatever he could, but that “anything attached to the wall” had to remain.

McWilliams claims that Caltrans’ acquisition of a section of his commercial lot, some 4,874 square feet, will make the remainder of his lot worthless. McWilliams places the value of the lot, with its 2,500-square-foot building and Mooney Boulevard access, at $700,000.

Sammaniego said that an outside appraiser, Roland Burchard of Walnut Creek in northern California, was on site to appraise the building, which McWilliams said was insured for $224,000. That appraisal has yet to come back with a value on the building.

Caltrans has offered $87,732 for the building and the strip of land it needs to widen Mooney Boulevard and install a bus stop there.

“Even if a bus stop were not in the plans, the building does touch into the area where the road is expected to be widened,” Sammaniego said.

Caltrans has for years been planning the overall renovation of Mooney Boulevard, a stretch of Highway 63 that is also the major north-south commercial artery in the city.

Sammaniego said that McWilliams can challenge the value of the appraisal if he feels it is too low.

Caltrans was forced to acquire only a strip of the lot, Sammaniego said, because McWilliams in past negotiations refused to sell the entire parcel to Caltrans.

Caltrans attempted an appraisal and eviction on Oct. 16, but McWilliams would not allow it.

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

COPYRIGHT © 2010 Arthur J. Hazarabedian, Esq.