By Brad Branan
Photo by ERIC PAUL ZAMORA/THE FRESNO BEE — The main house, one of three structures on property identified as belonging to Henh Ho at the northwest corner of Hughes and Church avenues west of Fresno, is partially obscured by trees. City Manager Andy Souza wants Ho to sell his 22.5-acre parcel for close to market value, but a city-funded appraisal found the land is worth “nowhere near” the $6 million he was offered by a previous Running Horse developer.
Mayor Alan Autry doesn’t have the City Council votes he needs to seize property for Donald Trump’s planned golf course in southwest Fresno — eliminating a key reason for city involvement in the Running Horse project.
The city has a deal to help the developer by buying portions of the bankrupt golf course and luxury housing development — using, if necessary, its power of eminent domain to take property at fair-market value. Officials say such a step may be needed for at least one parcel.
But three of seven City Council members say they would not support using eminent domain to complete Running Horse. Five votes would be needed.
“This would make us the poster child for bad eminent-domain use,” said Council Member Brian Calhoun. “I don’t want to defend that kind of action. And all for Donald Trump? Hell no.”
City Council resistance to eminent domain — also known as condemnation — could hold up another major Fresno project. City officials said they may need to condemn land in a six-block area downtown targeted for redevelopment by Cleveland-based developer Forest City Enterprises.
The reasons cited by council opponents of eminent domain reflect a growing unease nationwide about government seizing land for private economic development. Even council members who say they would consider eminent domain share those reservations.
Several states have passed laws limiting eminent domain, and California could soon join them, with voters likely to consider two ballot measures in June.
Property-rights groups already are poised to make Fresno and celebrity billionaire Trump part of their campaign to stop government from taking land to help developers.
“We’re watching this very closely,” said Marko Mlikotin of the advocacy group Californians for Private Property Rights Protection. “The city is essentially shifting the burden from Donald Trump to taxpayers.”
City Manager Andy Souza said he thinks he can persuade at least one of the council holdouts, if necessary, to vote for eminent domain.
He said the administration would use arguments similar to those the city would use in court, where it would have to demonstrate that the project serves a public purpose justifying eminent domain.
“We can make a compelling case if needed,” Souza said.
Autry puts limit on use
Under a deal approved by the council, Trump is moving to buy most of approximately 480 acres needed for the Running Horse project himself. The project fell into bankruptcy this year after its original developer ran out of money.
The city is attempting to acquire the rest, which it would sell to Trump, who would then build the golf course and luxury housing development he plans to call Trump National Golf Course Fresno.
Some council members said the city’s eminent domain powers are the only reason for the city’s involvement. Otherwise, Trump would have bought all the property himself.
Autry has ruled out using eminent domain against owners who live on property they are unwilling to sell, and city officials have said the project can be built without two properties where people live.
But the city may decide to use eminent domain against another property owner, 46-year-old Henh Ho.
Souza wants Ho to sell his 22.5-acre parcel for close to market value, but a city-funded appraisal found the land is worth “nowhere near” the $6 million he was offered by a previous Running Horse developer, said Souza, who wouldn’t reveal the appraised value.
Ho won’t say how much he wants for the land. He said he lived there and ran a small vegetable farm on the property until a year ago, when he moved to Los Angeles because he thought the golf-course project was going to start soon.
The city’s efforts could be stymied by three Fresno City Council members — Calhoun, Mike Dages and Cynthia Sterling — who say they would not support use of eminent domain for Running Horse.
Dages said he would support condemnation for the city’s infrastructure needs, such as roads or police stations, but not for a billionaire developer. He would also oppose using it for Forest City.
Sterling said she would have reservations using eminent domain for the Forest City project, as well, but would view it differently than Running Horse. The Forest City project is a redevelopment project aimed at blight and wouldn’t require the city to take people’s homes, she said.
Council members Jerry Duncan, Larry Westerlund, Blong Xiong and Henry T. Perea want the city to reach agreements with property owners, but would otherwise consider eminent domain as a last option for Running Horse.
Still, even those council members express reservations about seizing land. Duncan said he hates eminent domain, but may back its use if Ho wants too much money.
Westerlund conceded that the prospect of attracting national attention from anti-eminent-domain activists could influence his vote.
“This is certainly a hot-button issue in California and across the nation,” he said. “We can’t get away from the controversy.”
In the past five years, the City Council has approved the use of eminent domain to clear the way for at least 18 projects. Twelve of the projects were street construction, four were public buildings and two were private developments — Community Regional Medical Center and Old Armenian Town, which hasn’t been finished.
A different City Council made the 2003 decision to take land for the medical center, and it was one of many parcels needed for the project. The council voted last April to take an office building for Old Armenian Town. A staff report said the owner wanted 13% more than a city appraisal found it was worth.
Complaints across country
Complaints about eminent domain have grown dramatically across the country since 2005, when the U.S. Supreme Court upheld the right of a Connecticut city to take land for economic development.
On the surface, the case of Kelo v. New London raised the same question Fresno may consider with the Running Horse and Forest City projects: Can government take land to help a private developer?
New London designated a waterfront area for a riverwalk and residential, retail, and other business development. New London bought some of the property and condemned other land when owners held out. The holdouts included Susette Kelo, who didn’t want to give up her home and its prized view of the Thames River.
In a 5-4 decision, the Supreme Court ruled that the benefits of the project qualified it as a public use, the test for government to take property.
The court added, however, that “nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power.”
Many states took the court at its word.
In the past two years, 34 states passed laws in response to Kelo, according to the National Conference of State Legislatures. California and the rest of the states that haven’t passed laws considered similar legislation this year.
The laws and bills aim to restrict the use of eminent domain for economic development, transfers of private property to private developers and further define public use, among other things.
From a legal standpoint, the Kelo decision didn’t mean anything in California, said Glendale attorney A.J. Hazarabedian, author of the “California Eminent Domain Handbook.”
State law doesn’t explicitly allow condemnation for economic development, he said. Redevelopment agencies, though, can designate areas as blighted and seize them for that purpose.
But from a political standpoint, Kelo made a big impression in California. It “opened people’s eyes about what’s going on with eminent domain,” said Hazarabedian, who has represented property owners in such cases for 20 years.
A collection of groups, including the Howard Jarvis Taxpayers Association, has submitted signatures to place an eminent-domain measure on the June ballot. So has another coalition that includes the League of California Cities.
Both initiatives would restrict eminent domain for private development, although the League of California Cities measure would only protect homes, while the other proposal protects all property, supporters said.
Doug Sloan of the Fresno City Attorney’s Office said the city would take action on the Running Horse property before either initiative would become law.
But changes in the law could happen before the city considers eminent domain for the Forest City project, officials said.
City likely to win in court
If city leaders can overcome council opposition to eminent domain, they likely would prevail in court, experts said. State law allows cities to condemn land for golf courses, and the courts have broadly interpreted legal requirements that property be seized only for public uses.
If Fresno moves to condemn land for Running Horse and is challenged in court, the city would argue that the project serves a public use because anyone could play on the golf course, City Attorney Jim Sanchez said.
Running Horse would operate similarly to Trump National Golf Course in Los Angeles, which is open to the public, Sloan said. A day of golf at the Los Angeles course costs $275 to $375, depending on the day of the week, although fees here are expected to be less.
Hazarabedian said such a case would “test the limits” of the state’s eminent-domain law, and he would fight it in court if given the opportunity. But he conceded that property owners almost never win when they challenge government’s right to take land.
Gideon Kanner, a retired professor from Loyola Law School in Los Angeles, agreed.
A leading expert on California eminent-domain law, Kanner said the courts have taken a broad view of what constitutes a public use, which would help Fresno prevail.
The clearest example of this philosophy was the California Supreme Court’s decision to consider the Oakland Raiders a public use, when the city invoked its condemnation powers to try to keep the NFL team from moving to Los Angeles, Kanner said.
“Public use doesn’t mean public use; it means public interest,” Kanner said. “Given the California Supreme Court’s record, [the city of Fresno] would probably win.”
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