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CALIFORNIA EMINENT DOMAIN LAW BLOG

State to consider seizing BeauRivage property through eminent domain; Malibu Times, 9/23/09

By Olivia Damavandi

 In the ongoing multimillion-dollar restoration efforts to facilitate the return of steelhead trout to Solstice Creek, the California Transportation Commission will consider adopting a resolution that would allow it to acquire a portion of the privately owned BeauRivage restaurant property by eminent domain.

The commission, in conjunction with the National Park Service and the Santa Monica Mountains Conservancy, wants to take the property in order to remove existing fish barriers in Solstice Creek, which runs through part of the property, and implement “fish ladders”-structures that help the natural migration of the fish-to allow the fish to swim upstream of the parking area of the restaurant’s property, located near the intersection of Pacific Coast Highway and Corral Canyon Road. The matter will be decided upon during a Transportation Commission hearing scheduled to take place Oct. 14 and 15 in San Diego.

This has infuriated 31-year BeauRivage owner Daniel Forge, who said the project will handicap his business by eliminating significant parking space and by shutting down the north entrance of five-acre the property.

“In simple terms, they are stealing my property,” Forge said Tuesday in a telephone interview.

The project’s environmental assessment states the project would provide steelhead trout with a significant length of streambed available for spawning. Solstice Creek is 5 feet to 10 feet wide and, at most, could provide a mile of habitat for about 300 steelhead, according to NPS officials.

“[The California Department of Transportation (Caltrans)] is doing its part to ease the difficulty of the trout traversing this area, and the point of it [the project] is to make it easier for steelhead trout to pass through some of the Caltrans structures,” Caltrans Spokeswoman Judy Gish said Tuesday in a telephone interview. “All I can tell you is condemnation of property is the absolute last step, which means our Right of Way Division has been working with the property owner for a really long time to reach an agreement and when no agreement can be reached, that’s when condemnation can take place.”

Gish could not confirm how long the project would take to complete, or how much it would cost. Questions regarding the amount of compensation to be paid will not be discussed at the hearing. Calls to the National Park Service have not yet been returned.

The law provides procedures for public agencies to acquire private property for public use. In this case, the power of eminent domain may be exercised to acquire the property for the proposed project if the following three conditions are established: the public interest and necessity require the project; the project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; and the property sought to be acquired is necessary for the project.

The question of necessity has become a hotly debated issue. Some say the expenses of facilitating the return of the steelhead outweigh the benefits, while others feel it is important to help the trout species survive.

“There is an intrinsic value to have this species here,” Ray Sauvajot, chief of Planning, Science and Resource Management with the U.S. National Park Service, said in a 2001 interview with The Malibu Times. “The presence of steelhead tells us that our ecosystem is in good shape and humans depend on this ecosystem.”

Paul Edelman, deputy director of natural resources and planning for the Santa Monica Mountains Conservancy, said Tuesday in a telephone interview, “Southern steelhead are unique because they can survive in really warm water. With global warming, they might be the only steelhead that can survive in California streams in the next 50 years.”

Forge, however, is among many who say it isn’t prudent, given the current state of the economy, to spend millions of dollars for the sake of reinstating steelhead trout in multiple streams throughout the Santa Monica Mountains. The controversy extends far beyond the $1.6 million construction of a bridge crossing over Solstice Creek, a public works project funded through various state agencies, to which the city contributed about $239,000.

Many residents are outraged at the potential removal of the 100-foot by 80-foot Rindge Dam, erected in 1929 two miles upstream in Malibu Creek, an endeavor that could cost $72 million.

Meanwhile, a feasibility study of how to most effectively remove the dam was begun in 1999, and has increased from an originally estimated $2.1 million in 2004 to a current $3.9 million. The study is to determine what is the best alternative in removing, or altering, the dam to help with the reintroduction of the trout, and to improve the quality of the area’s watershed.

“With the current condition of our schools and the roads, there are better ways to spend our tax dollars rather than dumping millions of dollars away,” Forge said.

“I’m 84 years old, my health is failing and my wife is very sick over all this nonsense,” Forge said. “I’ve worked my whole life to buy this, to make something nice, to make something profitable… but they don’t care, they think trout are more important. This is insane.”

Malibu Times: http://www.malibutimes.com

COPYRIGHT © 2010 Arthur J. Hazarabedian, Esq.