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CALIFORNIA EMINENT DOMAIN LAW BLOG

Claremont Redevelopment Agency’s Eminent Domain Authority May Be Extended; 11/23/09

By A.J. Hazarabedian

Claremont’s city council will be voting this Tuesday to decide whether or not to extend the redevelopment agency’s eminent domain authority on nonresidential properties.

According to the Contra Costa Times article, “Claremont examines eminent domain“, some city council members have an issue with this ordinance.

The city’s mayor, Corey Calaycay, is against the ordinance because he does not believe that some of the buildings which have been deemed blighted are in fact blighted.

The final vote will be considered at the council meeting on Tuesday, November 24 at 6:30pm at City Hall, 225 Second St., Claremont, CA.

Commentary from A.J. Hazarabedian

The definition of “blight” in California is complicated, and sometimes, even properties which do not appear blighted can fall within the legal definition of blight. This has been an area of significant dispute in recent years, given some agencies’ misuse of the eminent domain process for private gain, and is an area which could well see a modification in the law in coming years.

Lemon Grove Plans To Spend $4 Million For Properties; 11/23/09

By A.J. Hazarabedian

The city of Lemon Grove in San Diego County is planning to acquire four properties to complete an $8 to $10 million project to realign Lemon Grove Avenue near State Route 94, according to the San Diego Union-Tribune article, “City to spend nearly $4 million for properties, road project“. The properties are located along Main Street and North Avenue and are expected to cost the city about $4 million. City officials have said that more than $1.3 million of that is to be reimbursed by a San Diego Association of Governments grant.

Last week the board voted at a council meeting to acquire a property on North Avenue, currently occupied by a storage business, for $2.5 million. This 1-acre property is needed to complete the project, which when completed, should ease the flow of traffic going in and out of the city, improve a main entryway, and upgrade infrastructure.

The  city is hopeful that all of the necessary properties will be acquired by the spring so that construction can begin by the summer of 2010.

The city, acting also as the community development agency, indicated it has the authority of eminent domain but is still attempting to negotiate with affected property owners. However, because of the project’s importance as well as the construction timeline, the agency has said they may need to use eminent domain if they cannot come to an agreement with the property owners. The City Manager indicated this process would be handled through the local Superior Court and could take about six months.

Commentary from A.J. Hazarabedian:

It is curious that the City apparently feels the need to exercise eminent domain through its Redevelopment Agency for a road alignment. Eminent Domain by Redevelopment Agencies is supposed to be for the elimination of blight, not construction of streets. Acquisition of property for streets is usually done through the City’s power of eminent domain, not its Redevelopment Agency’s power. Is it possible that the City might have something else in mind in addition to the road alignment? Irrespective, the City might just find that the cost to the City exceeds the $4 million budgeted, and the time to go through the Superior Court could well exceed the six months estimated by the City Manager.

Riverside to spend $5 million on Five Points parcels; The Press-Enterprise, 11/17/09

By Alicia Robinson

The Riverside City Council voted Tuesday to use eminent domain if necessary to buy parcels the city needs for road improvements at the Five Points intersection.

Compensating 15 property owners for land, furniture and equipment is expected to cost almost $5.4 million, but the city may not end up seizing any properties. City officials have worked out deals with three landowners, and they’re still talking with the remaining 12, Assistant City Manager Belinda Graham told the council.

“(With) some we’re close, but we just need a little more time in getting there,” she said, adding that to keep the project going the city needs to be able to stick to a timeline.

The council approved the road project in 2008. It includes widening La Sierra and Hole avenues and Pierce Street, adding left turn lanes, and closing Bushnell Avenue off as a cul-de-sac at La Sierra.

Officials say the work would make the intersection, now like a five-pointed star, safer and easier to navigate. The road work is expected to begin in July and was previously estimated at $3 million.

New commercial development also is planned for the area, but that is a private-sector project and the city is not using eminent domain for the developer’s benefit, city officials have said.

Councilman Paul Davis wondered what will happen to unused portions of six parcels the city will take whole. Road widening requires only strips of land adjacent to the street, but the city must take some complete properties because the only access to them is from the street entrance.

Davis said current owners should get the first chance to buy back left-over property if it’s possible to develop, but it’s unclear whether that will occur. Deputy City Attorney Eddie Diaz said the council has two ways to dispose of excess property, and City Manager Brad Hudson said some of the uses on the properties now would not be allowed under current zoning.

Ruben Juarez, who said he’s a part owner of La Sierra Dental, told the council he’s upset with how the issue has been handled.

“As the rightful owner, I want to enjoy my property and I want to be able to sell my property according to what I think it’s worth, not according to someone making a threat” of eminent domain, Juarez said.

The Press-Enterprise

Devore interchange to be discussed today; The Press-Enterprise, 11/19/09

By Dug Begley

Plans to redesign the Interstate 15/Interstate 215 interchange in Devore will get another look Thursday.

The interchange, a well-known bottleneck near where traffic enters and exits the Cajon Pass to the High Desert, is part of a $400 million project to widen I-15 and rebuild the ramps linking the two freeways.

“The Devore interchange is the worst traffic bottleneck on Interstate 15 in San Bernardino County,” said San Bernardino Associated Governments Executive Director Deborah Barmack.

A meeting hosted by Caltrans and SANBAG is scheduled in Devore. Visitors will be able to see maps and talk to engineers and planners about the proposed interchange.

 

Devore Interchange

It is the second public meeting to discuss the plans this year. In May, residents were skeptical about what widening the interstate would do to their small, rural community. Many said traffic noise already echoes off the mountains north of the area, and encouraging more traffic and cutting them off with a wider freeway could make it worse.

But officials said something must be done to relieve congestion in the area. More than 160,000 cars and trucks headed to and from Southern California pass through the area some days.

A fourth alternative for designing the freeway has been added to three other choices, following comments from residents in May.

All four options will be on display Thursday, officials said.

The Press-Enterprise

Power poles, land acquisition trip up Visalia’s plans for transforming Mooney/Walnut intersection; Visalia Times-Delta, 11/20/09

By Marty Burleson

Efforts to transform the Mooney Boulevard/Walnut Avenue intersection into something more user-friendly — two Walnut lanes in each direction, additional turn lanes — depend on the acquisition of private property on the northwest corner.

Plans call for the relocation of 85-foot power lines from the south side of Walnut to the north side. But the owners of the Peachtree Shopping Center, which includes In-N-Out Burger, have not responded to a city offer for a strip of property needed for power poles, a signal light and additional sidewalk space, according to city officials.

The property owners, John Barbis, Katherine Barbis, Mary Jane Abercrombie and Dane Paras, previously had completed right-of-way negotiations with Caltrans as part of the Mooney Boulevard widening. In January, they were notified of the need for additional property.

Money is not the issue, said their Visalia attorney, Glenn Stanton.

“My clients’ concern is the relocation of the power poles onto their property,” he said. “[The poles] have been on the south side of Walnut for 30-plus years, and there doesn’t appear to be any good, substantial reason to move them.”

City officials disagree — and this week the Visalia City Council backed them up, voting 4-1, with Don Landers dissenting, to pursue eminent-domain proceedings against the property owners. Under eminent domain, property may be seized — and purchased — for government use when the purpose is to benefit the general public.

The city will ask a Tulare County Superior Court judge to grant the city immediate possession of the property.

“Although we are proceeding with the eminent-domain process, staff will nevertheless continue to work to negotiate a reasonable settlement,” reads a City Council staff report prepared for Monday’s meeting.

The project

Plans call not only for the addition of through and turn lanes at the Mooney/Walnut intersection but a bus-turnout lane near the northwest corner. The intersection also will feature new medians, curbs, gutters and sidewalks, and both streets will be wider overall.

“If you’ve ever fought the traffic there, you know [why the project is needed],” said Adam Ennis, engineering services manager for the city of Visalia. “[Bottlenecks] down there, narrowing up at Mooney Boulevard.”

The finished product will resemble the intersection at Mooney and Caldwell Avenue, he said.

“The level of service [at Walnut] is only going to get worse as traffic picks up,” Ennis said.

The power poles must be moved, he said, but the presence of the Union Bank building on the southwest corner reduces the city’s options. Plans call for both regional and local power lines to be moved across the street, though the local lines would be placed below ground.

“Even though these lines would be moved closer to [Peachtree Shopping Center] businesses, they’ll be less of a visual blight after this project,” City Attorney Alex Peltzer said. “Old wooden poles will be replaced with fewer metal poles. There will be fewer lines and a wider street. We’re a little disappointed they don’t see the benefits.”

Timetable

Peltzer expects to go to a judge within the next few days. He hopes for a ruling that would allow the city to take possession of the corner property 60 days later, at which point the project would go out for bid.

According to that timetable, Ennis said, the project could be completed at the end of next summer.

Stanton, however, said he expects the matter to go to trial. He’ll argue that no public necessity warrants the seizure of his clients’ property.

It’s also possible that when a new-look Visalia City Council is seated — two supporters of Monday’s ruling, Jesus Gamboa and Greg Collins, lost re-election bids in this month — the city’s eminent domain proceedings could be derailed, Stanton said.

“I suspect … the project will be delayed awhile,” he said.

Visalia Times-Delta

Public hearing on eminent domain area; The Press-Enterprise, 11/16/09

By Leslie Parrilla

Corona city officials plan to extend their eminent domain authority for 12 years over a downtown area filled primarily with businesses.

Hundreds of businesses are in the Main and Sixth Street area covered by the action. Not included would be residential properties within the Merged Redevelopment Project Areas, said Darrell Talbert, director of the city redevelopment agency. Under eminent domain, government can take property for a public use, such as for utilities and highways. The owner of the property is entitled to compensation for the land, usually determined by the fair market value. Corona would use the authority to take blighted properties and redevelop them.

City officials say they have no specific or immediate plans for the downtown redevelopment area or to use eminent domain, but rather to have it available as a tool, if needed.

“There are times when you have to use those authorities to finish a piece or turn around an area,” Talbert said. “There’s not a specific plan or project in front of us for the moment. We’re still moving all those areas toward a higher and better use.”

A representative of Bridgestone tires objected to the amendment, asking that Bridgestone be removed from the project area or not be subject to eminent domain, according to a city staff report. The city denied the request.

Bridgestone said the redevelopment project area is not predominantly blighted, which is required to use eminent domain.

No other businesses have objected to the amendment, Talbert said, adding that city staff has been conducting community outreach to residents and businesses, explaining how the process works.

A public hearing on the matter is set for 7 p.m. Wednesday at Corona City Council Chambers, 400 S. Vicentia Ave.

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

Planned Interstate 10 offramp concerns San Bernardino residents; The Press-Enterprise, 11/10/09

By Dug Begley

Rosewood Drive, a stone’s throw from Interstate 10 in San Bernardino, has seen better days. Askew fences separate the homes, many showing signs of stress and peeling paint.

But the 15 houses on the street are still homes, and some homeowners are struggling to adjust to the fact they’re being booted so a new exit ramp can be built.

“She wants to stay here as long as she can,” said Samuel Meza, 16, translating for his mother, Rufina Meza. “This is her home.”

San Bernardino Eminent Domain

William Wilson Lewis III/The Press-Enterprise

Homes on Rosewood Drive in San Bernardino such as Rufina Meza’s will be demolished to make way for a new Interstate 10 exit ramp. Residents are concerned that they will receive less for their home than they paid for it.

To put in the new ramp and widen local streets near the intersection, 23 homes and two apartment buildings will be razed, said Garry Cohoe, director of freeway construction for San Bernardino Associated Governments. Pieces on other tracts of land will also be acquired by SANBAG and Caltrans for the project, but the homes would not be affected, Cohoe said.
The $76.3 million project to replace or widen entrance and exit ramps along I-10 is expected to start construction in 2012 and take about 18 to 24 months to complete. Property will be acquired in 2011 at the earliest, officials said.

Displacements are common for major freeway projects in California, where roads are crammed into developed areas and congestion forces officials to build more lanes. Investment is increasing for public transit projects, but in Riverside and San Bernardino counties, almost three in four drivers commute alone, and added bus routes aren’t going to dramatically change that anytime soon, road planners have said.

The larger concern for many residents who attended a public comment session on the project last week was receiving less for their home than they paid for it. With outstanding mortgages, many owners worry Caltrans will appraise their homes for less than they owe.

San Bernardino Eminent Domain

“So what happens with those loans,” said area resident Don Tindall, who attended the meeting to help neighbors who did not speak English. “Some of these people put everything they had into this house, and now the state’s going to buy it for less than they owe. So they get to move and still pay off the mortgage.”

Market Conditions

The state acquires the property either through price negotiations with the seller, or through the legal process of eminent domain, where a judge or arbitrator will settle the dispute and decide whether the state has a compelling interest to take the land.

Caltrans’ rules force the agency to pay fair market value — what the home is worth in today’s real estate climate — said Steve McClaury, a right-of-way manager for Caltrans.

“It goes both ways,” McClaury said of the state paying less than what people owe on their houses. “When we were acquiring property for the I-215 project, five, six years ago, we were paying much more than that property was worth and is worth now. We were paying unheard-of prices for that stuff.”

But that doesn’t mean the state isn’t sympathetic to the financial bind some could find themselves in with upside-down mortgages, McClaury said. A Federal Highway Administration program allows Caltrans to work with homeowners who could owe more than they are paid on homes.

“But there are conditions,” he said. “You have to be upside-down in your mortgage.”

Federal authorities allow for a price differential to account for increases in housing costs, which could be applied to absorb some of the losses, or help people find other homes, according to the highway administration’s Web site.

Distrust of the System

Despite public outreach, many residents said they remain wary of the plans, and the promises made by officials. Homeowners left in the shadow of the new exit ramp fear sound walls won’t be enough to keep the noise from affecting their homes.

San Bernardino Eminent Domain

William Wilson Lewis III/The Press-Enterprise

To put in the new Interstate 10 ramp and widen local streets near the intersection in San Bernardino, homes, businesses and apartment buildings will be razed. Rosewood Drive, center, will have most of the exit ramp leading to Tippecanoe Avenue.

“And I don’t want to be staring at a big concrete wall,” said Paul Jackson, 65, as he looked at a map that showed a sound wall right behind his Laurelwood Drive house.

Eight years ago a similar war was waged across Tippecanoe Avenue, when economic development officials cleared out a blighted neighborhood to make way for a complex of shops and restaurants.

Now residents east of Tippecanoe worry the city is building a blight case against them. Many said code enforcement officers have descended on the area.

“They are constantly going up and down the street, fining everyone,” Tindall said, adding that many residents and small business owners are afraid to speak out. “I don’t have any evidence of a conspiracy, but they are coming through every day it seems.”

City officials said the increase in code presence is likely either because of complaints, or technological changes that have made enforcement more productive.

“Where a neighborhood believes it is targeted, that is simply not the case,” said San Bernardino spokeswoman Heather Gray.

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

Board of Supervisors moves to seize land for Road 108 project while still in property negotiations; Visalia Times-Delta, 11/11/09

By Valerie Gibbons

Another road project has the Tulare County Board of Supervisors flirting with declaring eminent domain for a number of parcels.

Stimulus-funded construction along Road 108, or Demaree Street, between Visalia and Tulare prompted the board Tuesday to ask the court to start the eminent-domain process on four parcels for a thin strip of right of way for the widening project.

This is the second set of eminent domain lawsuits that the county has filed in the past two months. In September officials began the process to seize 14 parcels along Road 80 between Visalia and Dinuba.

The board also voted Tuesday to declare eminent domain on an additional three parcels along Road 80 — all owned by the same property owner. With the Road 108 project now moving to the eminent-domain stage, the total number of lawsuits filed by the county is up to 21.

At this week’s meeting, Road 80 property owner Ronald Vanderham said he tried repeatedly to nail down the details of the sale with the county.

“The loss of this land is going to affect my operation and permit status,” he said. “A lot of time has been wasted by cloudy answers and unanswered questions.”

The two projects are encountering the same problem.

In both cases, the widening projects will be affecting farmers who say the county isn’t offering enough money to stem losses from lost product, moving fences or taking out equipment.

Along Road 108, orchard owner James Rogers said the county’s consultant would not pay for the trees affected by the construction or their removal.

“They said my walnut and plum trees had no value and that I needed to take them out at my own expense,” he said. “I’m not looking for a job. This is going to make it difficult for me to farm.”

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

ESCONDIDO: County could use eminent domain for Merriam Mountains development project; North County Times, 11/9/09

By Morgan Cook

 If the developer can’t buy the land to widen Deer Springs Road as part of his proposed 2,700-home Merriam Mountains development north of Escondido, the county may use eminent domain to acquire the land from property owners, county official said this week.

If the county approves the project, developer NNP Stonegate-Merriam is responsible for acquiring the land to widen Deer Springs Road from two to four lanes, according to an agreement between the developer and the county.

County Department of Planning and Land Use public affairs officer Gig Conaughton confirmed Monday, though, that the county may use eminent domain to acquire any land the developer can’t buy at fair market value for the widening.

Using eminent domain, the county can force property owners to sell part or all of their land for public uses, such as roads and infrastructure improvements.

County policy lists five criteria that must be met before the county can use eminent domain on behalf of a project proposed by private developers:

– The developer must have made reasonable offers based on a fair market value appraisal report and made every reasonable effort to acquire the property rights;

– Alternative locations for the public project must have been considered and found impractical;

– County staff must have deemed it unwise to abandon the public project altogether;

– The developer must have agreed to pay all the county’s costs, including land purchases and eminent domain proceedings;

– The Board of Supervisors must have mapped out the land to be acquired.

Improving Deer Springs road is part of the developer’s plan to build 2,700 homes on 560 acres within 2,327 acres of rugged, mountainous terrain across Interstate 15 from the Lawrence Welk resort.

The county’s Planning Commission voted last month to recommend approval of the project. County supervisors will have the final say on the project’s fate. County officials said the board will probably consider the project by the end of the year.

The developer is required to widen the 2 1/2-mile stretch of Deer Springs Road between Twin Oaks Valley Road and I-15 to prepare for the 10,000 to 20,000 extra trips the project’s 7,600 residents would add to the road’s daily traffic.

Even without the project, the county has planned to widen the road since 1967, when it was classified as a four-lane road. In 2006, the county proposed reclassifying it again from four lanes to six lanes from Twin Oaks Valley Road to Champagne Boulevard.

Widening the road from four to six lanes is not part of the Merriam Mountain project.

The county hasn’t yet evaluated how widening the road to four lanes will affect existing properties.

A local business owner wasn’t willing to wait.

Owners of the Golden Door Spa hired Vista-based R.E. Berg Engineering, Inc. in April to determine how much land would be needed to widen the road.

Spa spokesperson Byron Blount said the study cost about $10,000.

The study concluded that 17.55 acres of variously zoned land from Golden Door Spa and about a dozen other properties would be needed to widen Deer Springs Road to four lanes. Widening the road to six lanes would require acquisition of 39 acres, the report said.

Stonegate Vice President Joe Perring said this week that his company is still working on plans to widen the road, but he estimated that it would take 13 to 14 acres of private property to complete the project.

Perring said he expects his company will be able to acquire the land through independent negotiations with property owners.

Part of the spa’s property was dedicated to the county for road expansion in 1975, county officials said. Planners said they do not anticipate needing additional property from the spa.

Blount isn’t convinced, saying the R.E. Berg report indicates that the county will need 2 acres of spa property along the road, and that the dedication shown on county assessor’s records doesn’t appear to cover the whole stretch.

Two acres doesn’t sound like much, but it will bring construction noise farther into the property, which attracts patrons with its promise of peace and quiet, Blount said.

“It’s like saying, ‘We’re only going to take the front entry and the living room of your house, but you can still use the back of the house and the swimming pool,’” Blount explained. “It doesn’t really work like that.”

North County Times: http://www.nctimes.com

Eminent domain underway on Hernandez property; Orange County Register, 11/4/09

By Erika I. Ritchie

 LAKE FOREST –– City officials on Tuesday voted unanimously to move forward in an eminent domain lawsuit seizing family property that is a component of a land swap deal thy have planned with the county.

“There has been no voluntary sale of the land,” said City Attorney Scott Smith, after reporting the City Council’s actions during a closed session meeting.

The lawsuit is expected to be filed in superior Court later this week, Smith said.

City officials also approved the transfer of $840,000 to be deposited with the state to be held in escrow for the Hernandez family until the outcome of the lawsuit is determined.

Lake Forest in June started start eminent domain proceedings on a parcel that is the last link in plans to begin building the city’s proposed sports park.

The 6.11-acre parcel – owned by the Hernandez family and adjacent to the Portola Center – is one of three planned for a land swap with the county and could become part of Whiting Ranch Wilderness Park.

In exchange, county officials have agreed to a land swap that will provide the city with more space for its proposed sports park and the county with an added parcel to become part of Limestone-Whiting Wilderness Park.

This agreement arranges for the city to receive 38 acres known as the Glass Creek parcel, located northwest of the intersection of Portola Parkway and El Toro Road. The city can develop it as recreational open space and use it to accommodate the proposed sports park and community center.

In 2004 the Hernandez family of Rancho Santa Margarita –– who have built mansions and engineered high rises – bought the parcel zoned business in Portola Hills.

Thus began plans for what Vince Hernandez called “the greatest investment of our lives.” They had plans to build a world-class resort and spa. Nestled atop a bluff overlooking Whiting Ranch, the blue-sky panorama would spread from Catalina to Fashion Island in Newport Beach.

The property would be built in Spanish and California-style architecture, a tribute to the family’s Native American and Mexican ancestry. The resort – modeled after the Montage in Laguna Beach and the Ojai Valley Inn in Ventura County – would offer amenities like a stone walking labyrinth, secret gardens, hidden-away cabanas and an authentic sweat lodge.

Vince Hernandez, who has lead the family efforts to get a fair price, said what the city is offering is not fair market value.

Hernandez says the property is zoned as commercial and he wants $3.6 million. He says commercial property is selling for $25 to $45 a square foot.

“They’re offering me $3 a square foot,” he said.

Orange County Register: http://www.ocregister.com

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COPYRIGHT © 2010 Arthur J. Hazarabedian, Esq.