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Mojave Water Agency Uses Eminent Domain For R-Cubed Project, 12/29/09

By A.J. Hazarabedian

The Mojave Water Agency (“MWA”) has begun eminent domain proceedings with five property owners to acquire property for its Regional Recharge and Recovery Project (“R-Cubed”).

The properties are undeveloped parcels in Victorville.  As reported in the Daily Press article, “MWA uses eminent domain on land: Property is needed for R-Cubed Project,” two of the properties are located along Mesa Street west of Interstate 15, where the Mojave Water Agency wants to place utilities for the project.  Another property, on Mesa Street, may be used for a street alignment.  One property is a portion of a larger parcel on the west side of Mesa View.  The final property has been settled with the property owner and MWA.

The purpose of R-Cubed is to protect future water supplies and is an “‘effort to expand existing ground water recharge basins and construct 15 miles of pipeline, pumps, a reservoir, five to seven wells and up to six turnouts to several local water providers.”

La Mesa Interchange Project, 12/28/09

By A.J. Hazarabedian

The City of Victorville was pleased to learn that Caltrans has agreed to allow the city to oversee the La Mesa/Nisqualli Interchange project.

According to the City, this decision will cut costs by almost $5 million and may also speed up construction.

However, the City is pushing back the construction start date as they continue to struggle with right of way issues.

In the Daily Press article, La Mesa interchange to start in fall: Will relieve Bear Valley traffic,” Councilman Ryan McEachon indicated, “property acquisition issues will most likely take another six months.”

The article mentions eminent domain proceedings for three parcels will be discussed at the beginning of the year.

City of Rosemead Reinstates Power of Eminent Domain, 12/28/09

By A.J. Hazarabedian

The City of Rosemead recently approved a strategic plan that aims to change the look and feel of the small town.

The plan is for the next two years, although city council members recognize all of the work cannot be accomplished in that time.

The article, Rosemead defines itself as a small town in the big city,” from the San Gabriel Valley Tribune, explains “the strategic plan aims to continue the city’s tradition, while making Rosemead more aesthetically pleasing, adding community events, improving security.”

Most interesting are the City’s comments regarding its claimed need to reinstate the City’s power of eminent domain.  Mayor Maggie Clark tells the Tribune, “we are just reinstating it, it doesn’t mean we are ever going to use it.”

City officials reference the elimination of blight as the reason for reinstating the power of eminent domain and refer to it as a “negotiating tool.”


Commentary from A.J. Hazarabedian:

Using the threat of eminent domain as a “negotiating tool” is effective, but tantamount to using eminent domain.  A property owner told to sell his property at a price favorable to the City or face eminent domain litigation often sees little difference between the threat and the filing of litigation.  It is incongruous for the City to say that it intends to use the threat of emiennt domain as a “negotiating tool,” but at the same time say they may not use eminent domain at all.

OCTA’s Habitat Preservation Efforts, 12/28/09

By A.J. Hazarabedian

The Orange County Transportation Authority (“OCTA”) has begun making habitat preservation efforts in an attempt to offset some of the environmental detriments from a planned freeway improvement project.

The Orange County Register reported last week in their article, Transportation agency to spend millions saving habitat,” that OCTA plans to use funds from Measure M to accomplish the preservation.  Measure M funds come from a half-cent sales tax voters in Orange County extended for transportation improvements.

The article indicates that the purpose of the project is to “hedge against possible habitat damage from a 30-year, $4.8 billion freeway improvement project the agency is planning.”  In order for this “preservation push” to become a reality, at least 26 properties around the county will need to be acquired.  The article indicates that it could be months before any land is acquired and also states that the list of 26 properties which have been reviewed by the environmental committee may change.

However, Melanie Schlotterbeck, an Orange County preservation activist and chairwoman of an OCTA environmental committee, said in the article that acquiring land is a priority.  She indicates that property owners may be more willing to sell their land due to the economic downturn and is also quoted stating, “the sooner we buy things, the likely cheaper they are.”

The agency is hoping this proejct does not cause controversy as past projects have.  Dan Silver, a preservation activist also serving on the environmental committee, explained that this project is much different than the creation of the county’s first nature reserve which brought up “contentious conflicts” in the 1990s.  He stated, “there’s so much less controversy here,” and, “we’re all working together to provide the most benefits.”


Commentary from A.J. Hazarabedian:

This situation presents a classic example of the types of policy conflicts which arise when eminent domain is under consideration.  Many people who think eminent domain is “bad” and should never be used under any circumstances also believe environmental preservation is “good” and should be pursued at virtually any cost.  But here’s a situation where in order to preserve the environment (good), the power of eminent domain (bad) may need to be used.  So apparently, you can’t have your cake and eat it too in this situation.  So which is it?  Use the “bad” power of eminent domain to achieve the “good” of environmental protection?  Or protect private property rights at the expense of the environment?

Chula Vista’s Redevelopment Plan – Expand?, 12/23/09

By A.J. Hazarabedian

The City of Chula Vista is looking for input from members of the community regarding a new five-year redevelopment plan.  According to the San Diego Union-Tribune article, “Public opinion sought on redevelopment plan,” redevelopment officials have hopes of repairing their relationship with the community.

In past years, redevelopment has been an issue of some contention among Chula Vista residents.  The article outlines some of the City’s past redevelopment issues, including a law that was put in place in 2006 which no longer allows for the City to condemn property for development purposes.

One thing at issue in this new redevelopment plan is whether or not to expand the redevelopment area in the western party of the city.  As it is now, the redevelopment area is made up of Third Avenue, Broadway, Main Street and the bayfront.  The article indicates that redevelopment officials do not have specifics as to the expansion area but mention it would likely be between Third Avenue and Broadway.

In the coming months, redevelopment officials will continue to work out a plan that best suits both the city’s needs and the community’s concerns.


Commentary from A.J. Hazarabedian:

Now that some time has passed since the landmark Supreme Court decision in Kelo v. City of New London, and eminent domain for development purposes is no longer quite the hot topic it was just a few years back, it will be interesting to see if Chula Vista – and other Cities which enacted similar ordinances – attempt to regain the power of eminent domain for redevelopment.

Sierra Madre Votes On Eminent Domain, 12/9/09

By A.J. Hazarabedian

City Council members in Sierra Madre decided Tuesday to add an eminent domain ballot measure to April’s City Council elections.  The measure will seek to ban the use of eminent domain for private purposes.

Taking of property from a private owner to give to another to further economic development has been a topic of wide debate in the last few years.  The Kelo v. New London decision made headlines and brought the issue of eminent domain for private use to the front lines.

Sierra Madre wants to prevent such an event from happening in their city.  The ballot measure, if passed, could provide some ease for property owners within the city.  The measure only applies to eminent domain for private purposes, not public.  However, it does also “prevent the city from funding or cooperating with the use of eminent domain by another city agency, such as the Redevelopment Agency,” as stated by Councilman Don Watts in the Pasadena Star News article “Sierra Madre residents will vote on eminent domain.

In the article it mentions that City Council members, such as a John Buchanan, support the measure, stating that “taking one person’s private property to hand it to another is morally questionable, to say the least.”

Come April’s elections we will see where Sierra Madre residents stand on the measure.


Commentary from A.J. Hazarabedian:

Under both the Federal and State Constitutions, eminent domain is already limited to “public use.”  Thus, eminent domain for private use is already technically prohibited by Federal and State law.  While Courts have broadly interpreted the term “public use” to include such things as redevelopment, it is unclear how the City’s addition of a prohibition on eminent domain for “private use” – given that eminent domain for private use is already prohibited under Federal and State law – will be any more clear than existing law.  Since it is the City Council which decides when or whether to use the City’s eminent domain powers, perhaps the City should just consider using eminent domain only when it is for a proper public use, rather than imposing an unnecessary duplication of existing law on themselves.

Resolution Of Necessity To Be Discussed In Vista, 12/7/09

By A.J. Hazarabedian

The Vista City Council, together with the Community Development Commission, will consider adoption of a Resolution of Necessity to acquire the Riviera Motel property, located at 242 Vista Village Drive, by eminent domain.  The hearing will be held tomorrow – Tuesday, December 8, 2009.

The Resolution of Necessity will be heard in conjunction with an Acquisition Disposition and Development Agreement with North County Ford.  According to the City’s agenda report, North County Ford approached the City about moving to a smaller location “due to changes in the auto industry”.  Because the dealership owns additional parcels along Vista Way, the City has agreed to purchase the properties from North County Ford and then lease the land back to them, while moving the dealership to a new facility on an adjacent site.

The City contends that including the Riviera Motel into the project is not for the benefit of North County Ford, but rather is an effort to continue the elimination of blight and further the redevelopment of the Vista Village Drive Corridor.

According to the North County Times article, “VISTA: City plans to buy North County Ford property,” Panjak Desai, who owns the motel, feels that the City should give him money to improve the motel rather than simply acquire it by eminent domain.  Desai plans to address the City Council at tomorrow’s meeting.


Commentary from A.J. Hazarabedian:

Taking property by eminent domain to benefit an auto dealership might create jobs and increase local tax revenues, but is one of those uses of eminent domain which should be examined carefully.  Is this truly a taking for public use, or is the City instead using eminent domain for private benefit and to benefit its own coffers?  Eminent domain for the elimination of true blight may well be appropriate as a public use; eminent domain for the sole purposes of benefiting a private auto dealer and increasing local tax revenues is questionable.

Claremont’s Eminent Domain Power Renewed, 12/3/09

By A.J. Hazarabedian

Claremont’s city council has extended the city’s eminent domain authority to include nonresidential property.

According to the article, “Claremont renews its eminent domain power,” from the Daily Bulletin, the city had to amend their redevelopment plan in order to extend their eminent domain authority for 12 more years.

In the article, Councilman Sam Pedroza explains, “This isn’t extending (the ordinance) into any new areas, it’s only extending the time. And one question keeps coming up…but there are no residential units that are within our eminent domain powers.”

Claremont’s city council voted to approve this action on Tuesday, November 24, 2009.


Commentary from A.J. Hazarabedian

Although the power of eminent domain in a Redevelopment Plan is limited by law to 12 years unless renewed, Redevelopment Plans themselves can last decades.  This is one of the recurring potential problems with redevelopment.  An area can be deemed “blighted” in a Redevelopment Plan, and then not acquired by eminent domain until decades later.  Within that time, sometimes, the area – or specific properties within it – have either rehabilitated through private development, or have worsened due to the cloud of potential eminent domain hanging over the properties in the area.  It is this author’s belief that while eminent domain may be appropriate in limited circumstances to cure true “blight,” sometimes the power is exercised where not truly necessary to cure “blight,” as in the example of properties declared blighted decades earlier which have since been rehabilitated on their own.  This is not an indictment of Claremont; this author is unaware of the conditions of the redevelopment area at issue.  Rather, it is a general comment as to the workings of redevelopment in general.

Exeter City Council Does Not Support Closure of C Street, 12/2/09

By A.J. Hazarabedian

As a follow up to our October 21, 2009 post regarding the closure of C Street in the city of Exeter, the Exeter City Council has decided not to support the closure.  The city council  has indicated, according to the Visalia Times-Delta article, “Exeter City Council: Don’t seize homes,” that they will not agree to the closure of C Street if the Public Schools District uses eminent domain to acquire 11 homes.  The Exeter Public Schools District has plans to acquire 11 properties by eminent domain to expand Lincoln Elementary School which runs the risk of being out of State compliance due to space requirements.

The city council surprised school district officials by coming out against the possible use of eminent domain at its meeting on November 24, 2009.

Some council members indicated homeowners may experience increased property taxes if they were forced to move and that the number of properties for sale in the city could not support the 11 families who would be affected by the project.

This is not the end of the road for the school district, however. The district may still seek to use eminent domain for the project.


Commentary from A.J. Hazarabedian:

Schools are a classic example of an appropriate public use supporting exercise of the power of eminent domain.  If the school is out of compliance, it needs to expand.  And the only way it can expand is either by using eminent domain, or overpaying for the property necessary for the expansion.  This is just the harsh reality.  Would the City’s voters really prefer that the school district overpay for property necessary for expansion, thus taking away much needed school dollars?  That is not to say the property owners should be underpaid.  Property owners are entitled to fair market value for their property in an eminent domain action.  If they are not satisfied with the school district’s appraised value, they are entitled to have a jury decide the value.  But absent the ability to use eminent domain, the school district would be put in the position of having to pay whatever the property owners want – even if they want 10 times the fair value of their property.  This hardly seems an appropriate use of school funds, and one must question whether the Exeter City Council has really thought their position all the way through.

COPYRIGHT © 2010 Arthur J. Hazarabedian, Esq.