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Is There Eminent Domain in Cyberspace?, 4/30/10

By Glenn Block

We came across an interesting column in the Los Angeles Times today regarding what appears to be the first case of eminent domain – sort of – in cyberspace.  How is that possible?  A San Francisco company called Linden Lab has created a virtual world known as Second Life.  Their website purports, “a free 3D virtual world where users can socialize, connect and create using free voice and text chat.”

The “world” may be free; however, property (including islands, or other virtual real property) is purchased by users using real-world dollars.  A user then becomes the property owner and may develop it as he or she wishes.  That is, until Linden Lab changed their terms.

Originally, per the Los Angeles Times column, “A real-world battle over virtual-property rights,” citing a lawsuit filed in Pittsburgh, PA this month, Linden Lab, “repeatedly emphasiz[ed] that users would have indefinite ownership of any property purchased online.”  Users paid hundreds of real-world dollars, or more, to own property in this virtual world, with the promise it would be theirs and theirs alone for life.  This was what Linden Lab had claimed until the company, “quietly changed its contract terms to remove the concept of ownership and has confiscated the property of some users without compensation.”

Is this the taking of private property without payment of just compensation?  In situations involving real property (pun intended), the Fifth Amendment of the United States Constitution protects private property rights.  The government can only take private property for a “public use” and only upon payment of “just compensation.”  But does the Fifth Amendment extend to the virtual world?

In the virtual world of Second Life, if Linden Lab is the “government” do they need a “public use” to take virtual property?  Not likely.  Even though Linden Lab may be the “government” of its virtual world, it is not the government in reality and therefore not bound by the federal or state Constitutions.  As we point out in our “California Eminent Domain Handbook,” traditional examples of “public uses” for which the government might exercise its power of eminent domain include such things as schools, roads, libraries, police stations, fire stations, etc.  How about payment of “just compensation”? Again, they are not bound by the constitutional requirement of “just compensation.”  They may however, have a contractual obligation to pay compensation or damages.

According to the Los Angeles Times, “[t]he lawsuit seeks more than $5 million in damages for what it says was fraud and violations of California consumer protection laws,” as well as, “a judge’s determination that Second Life users do indeed own the property they purchase online, and as such they enjoy the same right as real-world property owners.”

Second Life property owners may want to consider hiring virtual eminent domain attorneys.

Elsinore Valley Municipal Water District Prevails in Right to Take Challenge, 4/29/10

By A.J. Hazarabedian

Elsinore Valley Municipal Water District received a favorable verdict in a case involving a right to take action.  Property owner, John O’Doherty was challenging the water district’s right to take a portion of Third Street for a water pumping station.

The verdict was discussed in a recent Press-Enterprise article, “Judge rules in favor of Elsinore Valley water district in eminent domain case.” It appears that the water district did not actually acquire Mr. O’Doherty’s property; rather, the property they did acquire would, according to O’Doherty, “[limit] access to [the] property he owns near Third and Collier, [diminish] the value of the property and [increase] the potential for flooding on the land.”  Mr. O’Doherty sought $768,000 in damages from the water district and challenged their right to use the property.

The result: Riverside County Superior Court Judge Peter L. Spinetta ruled “that the water district had the right to take and use a portion of Third Street near Collier Avenue for the station and that the project was more necessary than the road being used as a footpath or for vehicle traffic.”

As we discuss in our “California Eminent Domain Handbook,” successful challenges to the government’s right to take a particular property are the exception, not the rule, and usually result only in a delay, rather than outright prevention of the government’s right to take.  Each case must be evaluated on its own facts and experienced eminent domain counsel should be consulted.

Seal Beach Moves Forward With River’s End Project, 4/27/10

By A.J. Hazarabedian

As a follow up to a previous post, the Orange County Register is reporting that the Seal Beach City Council voted to move forward with the River’s End project, even with the objections from developer, Bay City Partners.

The developer’s concerns, according to the article, “Seal Beach moves ahead with $2 million park project,” are “a bit of a stretch,” said Councilman Charles Antos.  Some of the environmental concerns include global warming, traffic and soil impacts.

The city claims the developer’s concern for future development of their land “has nothing to do with the city’s River’s End improvements.”

The city will continue with the eminent domain process to acquire the land necessary to complete the River’s End project.

Seal Beach Developer Fights City Over Eminent Domain, 4/23/10

By A.J. Hazarabedian

Bay City Partners, a local developer in Seal Beach, has filed a lawsuit against the city claiming the city did not do a proper environmental study for the River’s End Project, according to the Orange County Register.

The article, “Developer fights city project, eminent domain process,” explains the developer’s frustrations with the city’s plans, as they may interfere with potential development plans for the site.  Bay City Partners’ project development manager, Edward Selich, is unhappy with the city’s “lowball offer,” suggesting the land could go from $500 to $700 per square foot, while the city is only offering $4.50.  Mr. Selich sent a letter to the Orange County Register, calling this an “unwarranted abuse by the city of the power of eminent domain.”

The city is trying to acquire a driveway, but because of its possible interference with future developments, Bay City Partners has “suggested the city should purchase the entire property, find an alternative to the public access road or enter into an agreement with the landowner to lease the road to the city for public use.”

The city’s project will be discussed at Monday’s public hearing.

Tulare County Using Eminent Domain for Road Widening Project, 4/22/10

By A.J. Hazarabedian

The Board of Supervisors in Tulare County met Tuesday to decide whether or not to use eminent domain to acquire property for a street widening project in the town of Goshen.

There were 11 parcels on the agenda and all resolutions of necessity were adopted.  This means the county will be moving forward with acquiring the properties by eminent domain.

The Visalia-Times Delta has been following this story and yesterday had an article, “Tulare County to claim Goshen land for road project,” outlining the project as well as the outcome of Tuesday’s Board of Supervisors meeting.

The project will “widen Betty Drive and Riggin Avenue, or Avenue 312, from two to four lanes,” and will, “extend Riggin to Road 80 in Visalia and build a bridge on Betty over railroad tracks between Camp and Effie drives.”

The county is said to be using eminent domain in order to get the project moving forward.

San Luis Obispo County to Use Eminent Domain for Nipomo Project, 4/22/10

By A.J. Hazarabedian

San Luis Obispo County Board of Supervisors took the next step towards acquiring parcels for Nipomo’s Willow Road interchange project on Tuesday.  As discussed in the Santa Maria Times article, “Board OKs use of eminent domain,” the board voted to adopt resolutions of necessity to acquire three parcels of land.

The article states, “because of time constraints, county staff told the supervisors it was necessary to start eminent domain proceedings in case ongoing negotiations with the property owners who have yet to settle fail.”

Eminent domain is the power of local, state or federal government agencies to take private property for “public use” so long as the government pays “just compensation.”  The government can exercise its power of eminent domain even if the owner does not wish to sell his or her property.

Construction for this project is expected to begin winter 2011.

Pasadena City Council to Move Forward With Eminent Domain, 4/14/10

By A.J. Hazarabedian

As a follow up to a previous post regarding the Pasadena property located at 78 N. Marengo Avenue, the Pasadena City Council has decided to move forward with acquiring the property by eminent domain.

In yesterday’s Pasadena Star News there was an article, “Pasadena City Council votes to use eminent domain on abandoned YWCA building,” discussing the situation.

Per the article, the Pasadena City Council has chosen to authorize the use of eminent domain to acquire Angela Chen-Sabella’s vacant building.  The article also mentions that the vote was unanimous.

Eminent Domain in Contra Costa County, 4/13/10

By A.J. Hazarabedian

A lane widening project is underway in the City of Antioch, which according to the Contra Costa Public Works Department, will require acquisition of a few properties.

A recent KCBS news article, “Contra Costa Evokes Eminent Domain to Make Way for Highway,” reports that a traffic chokepoint will be alleviated, although eminent domain will need to be used.  The project includes a new off-ramp to Somersville and widening of Somersville, with construction anticipated to begin this summer.

County Supervisor Federal Glover states in the article, “unfortunately eminent domain is one of those things that we have to use when we can’t find an agreement, in order to achieve our goal.”

They are one step closer to their goal, as a resolution of necessity to acquire the necessary properties was adopted March 23, 2010.

Controversy Continues in the City of Exeter, 4/13/10

By A.J. Hazarabedian

We reported back in December about the City of Exeter and how they would not be supporting the closure of C Street by the Exeter Public Schools District and the acquisition of properties by eminent domain.

The City is now hoping to be removed from the controversy all together.  As discussed in the Visalia Times-Delta article, “City of Exeter bows out in dispute between residents, school district,” the Exeter City Council is said to want “no part in the conflict between Exeter Public Schools and C Street homeowners.”  The article explains how Exeter’s Interim City Manager, Felix Ortiz, had asked that the homes not be seized, only to be shut down by Superintendent Renee Whitson.  Whitson claims she does not want to agree to not using eminent domain, just in case the district cannot come to an agreement with homeowners.

Currently, the district is waiting for approval from the State to move forward with building on the homeowner’s parcels, and cannot give any clear answers as to when an acquisition might take place.

National City Moving Forward With Eminent Domain, 4/13/10

By A.J. Hazarabedian

National City is making progress in terms of acquiring property for the widening of Plaza Boulevard.  The City Council adopted a resolution of necessity to acquire the necessary properties by eminent domain, which is the last step they must take prior to filing an eminent domain action.

In a San Diego Union-Tribune article, “City ready to acquire land to widen Plaza Boulevard,” we learned that “five or six owners out of 37 with properties along Plaza Boulevard have not yet reached agreement to sell to the city.”

The article quotes Maryam Babaki, National City’s development services director, who explains that none of the owners have a problem with the take itself, rather the effects of the actual construction.  She mentions that those concerns would be addressed during negotiations with each owner.

COPYRIGHT © 2010 Arthur J. Hazarabedian, Esq.