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CALIFORNIA EMINENT DOMAIN LAW BLOG

Piercing shop owner gives up; The Signal, 1/25/09

Council takes final steps in eminent domain proceedings

By Josh Premako

The last obstacle to a new library in Newhall could fall Tuesday, and piercing shop owner Thomas Fitterer said he’s given up on fighting it.

In November, the City Council agreed to use eminent domain to seize the property that houses the Just Passing Thru piercing shop on Spruce Street, approving up to $800,000 for the property Fitterer purchased 16 years ago.

On Tuesday, the council will be asked to approve a new sum of $1.01 million, which includes any necessary relocation fees.

The new amount is the result of continued negotiations with Fitterer, said Paul Brotzman, director of community development.

City officials plan to start work on the library within a year and open it in 2012, Brotzman said.

Fitterer’s was the last space the city needed to acquire in the small building, which also houses a chiropractic office and a pet store.

The building will be razed to make way for a new library.

The city paid $1.25 million last year for the chiropractic office adjacent to the Fitterer’s space.

“I’m done,” Fitterer said Friday afternoon. “I don’t have the money to fight.”

Fitterer splits his time between Tustin and Palm Springs, and runs Professional Practice Sales in Tustin, which specializes in the appraisal and sale of medical office space. His son, John Fitterer, runs Just Passing Thru.

Expected to cost somewhere in the neighborhood of $12 million, the library will stand at the intersection of Lyons Avenue and Main Street. At about 25,000 square feet, it will be roughly five times larger than the existing library at the corner of Walnut and 9th streets.

“This is a major, major expansion,” Brotzman said.

Taking Fitterer’s property was the first time the city used eminent domain to acquire property for its planned revitalization of downtown Newhall.

“Eminent domain is an evil thing. They think they own everything,” Fitterer said. “They need a new library like they need a hole in the head.”

Mayor Frank Ferry said the dollar amount on Tuesday’s agenda is “fair for the property owner and the city,” adding the new library will be a “crown jewel” in the middle of Newhall.

Approved in late 2005, the Downtown Newhall Specific Plan aims to spend about 20 years turning one of the valley’s oldest communities into a mixed-use, arts-friendly downtown that attracts visitors from inside and outside the Santa Clarita Valley.

The Signal: http://www.the-signal.com

Ruling reversal clears way for boxing gym’s lawsuit; The Union Tribune, 1/22/09

By Janine Zuniga

NATIONAL CITY – A National City boxing gym challenging the city’s eminent domain authority will get to argue its case after all, an appeals court ruled Thursday.

Less than a week after hearing arguments, a three-judge panel of the 4th District Court of Appeals unanimously reversed a lower-court ruling that threw out the Community Youth Athletic Center’s lawsuit against the city.
The case was dismissed because a published legal notice seeking residents interested in joining the lawsuit contained wrong deadline dates.

The panel said the lower court should have found there was good reason, or “good cause,” for the publication error. The justices also ordered the lower court to allow the athletic center to republish the legal notice.
“What this means is that we can actually prove this case on its merits and not have it dismissed on a technicality,” said Dana Berliner, an attorney with the Institute for Justice in Arlington, Va., which is arguing the case. “Everyone is very excited that the case is back on track.”

Berliner said she hopes to get the legal notice published soon, and be ready for a trial in the next few months.
Owners of the athletic center, which sits in a redevelopment zone, fear the city will use eminent domain to force them to move. The gym sits in the path of a proposed high-rise condo and retail project on National City Boulevard. The gym owners filed suit in 2007 alleging National City’s renewal of its eminent domain authority was unconstitutional.

The lawsuit said the city failed to provide sufficient evidence that 700 properties in the city’s redevelopment area are blighted, which is required before they can be taken through eminent domain. The center’s lawyers also claimed the city didn’t allow enough time for the public to comment on their blight analysis.

A San Diego Superior Court judge dismissed the case in February.

Mayor Ron Morrison said Thursday that the City Council will be discussing the matter during closed session at an upcoming meeting. He said the city followed state law when it recently extended the redevelopment area’s blight designation 10 years.

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

City considers first eminent domain action in land dispute; The Union Democrat, 1/14/09

By Patty Fuller

Two strips of private land east of downtown Angels Camp have city officials en route to the first eminent domain, or land seizing, action they have taken in years.

Owners of one of the strips say, though, that they feel the city is trying to bully them into selling the land strip at a fraction of what it is worth, and that they will resolve the matter in court, if necessary.

“I’ve negotiated multi-million-dollar deals. I’ve never seen anyone not communicate the way the city does,” said Mark Jones of the dispute over the city water pipeline easement that nearly bisects the 1.75-acre parcel off Purdy Road that he and his wife, Wendy, own and live on.

It is also where their real estate-commerical lending business is based.

Under that stretch is a 10-inch pipe that is part of the city’s aging main water line. A line replacement project in the works calls for a 12-inch pipe to be installed parallel to the old pipe. This requires that the city’s existing 10-foot pipeline easement be widened to 20 feet.

City Engineer Gary Ghio explained that the wider easement is needed because the new pipe has to be at least 5 feet away from the old line.

But a wider easement would prevent the Joneses from building eight rental units that they say were the reason they bought the property, zoned for multiple residences, four years ago.

A wider easement would likely limit this project to four units, and result in a huge loss in future rental income, they said.

Based on an appraisal, city officials last year told the Joneses they would pay for the wider easement. Mark Jones said his response letter stated that he wants $50,000.

He noted Monday, though, that he is willing to discuss a lesser amount with city officials.

But how well the two sides have communicated is also at issue.

Beyond the land value, they are also in disagreement on how the property appraiser was chosen, why the Joneses weren’t notified an appraiser would be looking at their property and how the appraisal itself was determined.

City Attorney Richard Matranga and Ghio say the city has done everything it is legally required to do in terms of the appraisal and letting the Joneses know of city meetings and other efforts relating to the easement matter.

The Angels Camp City Council at its Dec. 16 meeting unanimously passed a resolution “declaring the public necessity for the Murphys Grade Waterline replacement project.”

The resolution regarded both the wider easement needed through the Jones property and another wider stretch needed on Purdy Road property owned by Bob and Kathleen Diebold.

 The Diebolds could not be reached for comment but city officials said this couple also takes issue with what the city wants to pay for the broadened easement.

While Bob Diebold received official notice of the Dec. 16 council meeting, Mark Jones said neither he nor his wife received any notice. He has since learned that a meeting notice the city staff sent by certified letter to the Joneses went to the couple’s old post office in Pismo Beach – and to someone else named Jones.

Regardless, Ghio and Matranga stress that they want to work with the Joneses to come up with a fair price, and not go through with the eminent domain.

“I’ve been the city’s attorney for almost 15 years and I’ve never filed an eminent domain action. So that ought to tell you the philosophy of the council,” Matranga said.

Ghio agreed that seizing the land is a last resort. But the city pipeline project needs to proceed, he said.

“I’m just sad it had to come to this,” Ghio said.

Rather than being sad, the property owners expressed frustration and distrust of city officials because of the now nearly two-year-old dispute.

“Somehow I think they think they’re dealing with an idiot,” said Mark Jones. “We’re getting to the point where, if you’re going to shove, we’re going to push back. I’m very protective when it comes to property rights.”

After learning of the eminent domain resolution, Jones wrote city leaders and asked that this action be reconsidered.

“It will only cost the city more in the long run,” his letter concludes.

Matranga said that he expects to again discuss the dispute with the Angels Camp City Council in closed session at its meeting next week.

The Union Democrat: http://www.uniondemocrat.com

COPYRIGHT © 2010 Arthur J. Hazarabedian, Esq.