Part 3 of 3 Tomorrow, June 23rd, is the 2nd anniversary of the Kelo decision

It is virtually impossible to cover all of the specifics of the multiple initiatives claiming to be the answer to removing the black cloud of eminent domain in our state. In my last post I cited a few of the flaws of the opposition initiatives including ACA-8.

In this final report of this mini-series I will include some of the positive features in the California Property Owners and Farmland Protection Act that I fully support. As promised yesterday I will conclude with the opinion from the Institute for Justice on the Californians for Eminent Domain Reform proposed Act of 2007/2008.

The proposed Constitutional Amendment submitted by the California Farm Bureau Federation, the Howard Jarvis Taxpayers Association and the Cal. Alliance to Protect Private Property Rights includes the following legalese:

To put to rest possible concerns by voters let me start off with some of the closing points relating to Section 19, Article I of the California Constitution:

“(f) Nothing in this section prohibits a public agency from exercising its power of eminent domain to abate public nuisances or criminal activity:

(g) Nothing in this section shall be construed to prohibit or impair voluntary agreements between a property owner and a public agency to develop or rehabilitate affordable housing

(h) Nothing in this section prohibits the California Public Utility Commission from regulating public utility rates

(i) Nothing in this section shall restrict the powers of the Governor to take or damage private property in connection with his or her powers under a declared state of emergency

Query. Does anyone have a problem with any of the above statements? I don’t.

Article I “SEC. 19(a) Private property may be taken or damaged only for a stated public use and when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. The Legislature may provide for possession by the condemner following commencement of eminent domain proceedings upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount of just compensation. Private property may not be taken or damaged for private use.

To be totally clear I am now adding text from the proposal dealing with two frequently used terms, “private use” and “just compensation.”

(3) “Private use” means:

(i) transfer of ownership, occupancy or use of private property or associated property rights to any person or entity other than a public agency or a regulated public utility:

(ii) transfer of ownership, occupancy or use of private property or associated property rights to a public agency for the consumption of natural resources or for the same or a substantially similar use as that made by the private owner: or

(iii) regulation of the ownership, occupancy or use of privately owned real property or associated property rights in order to transfer an economic benefit to one or more private persons at the expense of the property owner.

(5) “Just compensation” means:

(i) for property or associated property rights taken, it’s fair market value:

(ii) for property or associated property rights damaged, the value fixed by a jury, or by the court if a jury is waived:

(iii) an award of reasonable costs and attorney fees from the public agency if the property owner obtains a judgment for more than the amount offered by a public agency as defined herein: and

(iv) any additional actual and necessary amounts to compensate the property owner for temporary business losses, relocation expenses, business reestablishment costs, other actual and reasonable expenses incurred and other expenses deemed compensable by the Legislature.”

Any property owner that is forced to sell his or her private property is surely entitled to challenge that “taking” and collect reasonable compensation for his expenses and court specified valuation in the process. Larry G.

Sometime later I will provide a layman’s interpretation which might make it easier for the average voter to understand why this is the best chance we have to get meaningful reform in California.

Let me close with the “INSTITUTE FOR JUSTICE ANALYSIS OF THE EMINENT DOMAIN REFORM ACT OF 2007/2008”
On May 21, the Californians for Eminent Domain Reform announced a package of eminent domain legislation entitled The Eminent Domain Reform act of 2007/2008. The package, which includes both a constitutional amendment and statutory changes, claims to be a response to the U.S. Supreme Court’s infamous decision in Kelo v. city of New London. Unfortunately, the act if passed would continue to allow a considerable amount of abuse to continue.

Despite its lofty intent, the proposed amendment would only truly protect “owner occupied residence[s]” from being acquired by eminent domain and consequently transferred to a private party for private development. While that prohibition is certainly necessary and worthwhile, as defined in the amendment, “owner occupied residence” specifically excludes all farmers, all renters and even all homeowners if they have not lived in their residence for a year or more. Further, the amendment purportedly protects small businesses with one section, but takes any protection away in the very next section by allowing for the acquisition of property for the purpose of removing “blight”–the exact rationale in California’s vaguely worded Health and Safety Code that authorizes most, if not all, eminent domain abuse in the state.

The amendment does require that small businesses be offered a chance to participate in the redevelopment, but as applied in the statutory portion of the act, this provision is simply window dressing. Anyone participating must do so in “conformity with the redevelopment plan,” which effectively means the owner loses control of the business. The same is true of business tenants, who would-be allowed to remain only if they “meet the requirements” of the plan. In addition any proposal offered by an owner or tenant will be judged on “objective ” criteria, such as whether the proposal furthers the objectives or design guidelines of the redevelopment agency and conforms to the agency’s owner participation rules. Further, small businesses that wish to stay must have the experience, qualifications and money if necessary to pull it off–and they have 30 days to put their proposal together. Finally, businesses still lose when multiple parcels are needed because of “modern development patterns” or where other factors exist that reduce the ability of the current businesses to say. Small businesses can clearly still be taken for private commercial development.”

That concludes my first shot at preparing all of us for the blitz to come with promises to provide a safety net for all California property owners.

Note: During the National City Council meeting, debating the extension of their eminent domain powers, several speakers raised the question of “blight” which triggers public agency powers to take private property. Although several of us worked with S.D.Senator Christine Kehoe in the last session to fully define blight, her peers, from both sides of the aisle, were heavily lobbied by those who had the most to lose and watered down SB 1206 which was our best shot of reform in the past 12 years.

In closing I must commend the Institute for Justice family for their efforts around the country to rid every state of this cancer that impacts those least able to defend themselves against people “from the government who are here to help us.”

And to Susette and Michael
Kelo and the Cristofaro’s of New London, victims whom I have met at the Castle Coalition, including many others from N.Y. and N.J. to Riviera Beach, Fl, Loraine and Lakewood, Ohio to Ardmore, PA, I say hang in there. Together we can alter the mistakes made by the U.S. Supreme Court in 2005 by enacting new laws in every state as they indicated we could.

Have a safe and festive 4th of July.