Friday, November 10, 2006

Understanding California Eminent Domain Law

The Following Is Quoted Directly Out Of The California Constitution


SEC. 19. Private property may be taken or damaged for public use only 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 condemnor 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.

The main difference between what is in the California Constitution now and the newer language was this one added sentence: "Private property may not be taken or damaged for private use."

In essence it was the same added language but specifically said no to private party takings and damages. Maybe the language in subsequent areas could have clarified that general zoning changes were not ruled as damages even though (my reading of it) was specifically addressing the zoning changes involved with eminent domain takeovers.

This just goes to show that the writing of laws need to be as tight as possible in order to leave out any ambiguities.

As our California Constitution is currently written in this area, there are a lot of ambiguities, because the argument could be made by a Lawyer that since the California Constitution already says, "Private property may be taken or damaged for public use only when just compensation," which infers that private property may not be taken or damaged for private use. However, I suspect that since it does not specifically say, "private property may not be taken or damaged for private use," that other Lawyers have interpreted this to mean that cities can use it for private property gain. This has opened the spigot for cities to have Eminent Domain on their books as a tool for Redevelopment Zones to use in a "last case resort"

However, as we have said before, having an eminent domain hammer over a redevelopment zone imposes a very aggressive stance against any owner of property in the redevelopment zones. Plus, redevelopment zones can be expanded or include other areas of the community. Intimidation is definitely a force, in which an aggressive developer comes in to the city and proposes a major change for the property. With visions of dollar signs in the head of City Council Members (an increased tax base for the city), is it any wonder why most property owners really have an aversion to having Eminent Domain on the books? Likewise, as the city tries to meet their low cost housing goals, the pressure is on for them to really forget the rights of the individual property owners and do what will Net them the most value. If that means having Eminent Domain on the books, then the city will take advantage of this by having it as Council Member David E. Hudson, stated, "Eminent Domain is just another tool in our quiver, we do not intend to use it." That was the reason that the City Council passed Eminent Domain for private gain to be a tool in their quiver.

Market forces are steered by laws, zoning, and other ordinances. Eminent Domain on the books of San Ramon steers market forces. Once again we have the case of the "law of unintended consequences."

Thursday, November 09, 2006

8 States Vote To Restrict Eminent Domain


Voters on Tuesday responded by voting in favor of the restrictive measures in eight of those initiatives - call it Kelo's revenge.

Two other states rejected similar ballot measures, and results for one were not expected until later on Wednesday.

Arizona, Florida, Georgia, Michigan, Nevada, North Dakota, Oregon and South Carolina all passed initiatives to restrict the use of eminent domain, in most cases overwhelmingly.

In Florida, 69 percent voted yes on an amendment that prohibits using eminent domain to force the transfer of property from one private individual or entity to another.

In Georgia, 83 percent voted to approve an amendment to the state constitution that says eminent domain can be used only for public use. A school or park might be okay; the government taking land to give to a mall developer would not be.

The most one-sided vote in favor took place in South Carolina, where 86 percent voted yes to an amendment restricting eminent domain for public use only.

Read the entire story: Kelo's revenge: Voters restrict eminent domain

The vote in California was close. Opponents of Proposition 90 claimed that the proposition went too far and encompassed areas that had to do with zoning and other issues not related directly to eminent domain.

While some individuals read the initiative one way, others read it another. It is certainly apparent that the public is not very happy with the decision that the government could kick you out of your property and give it to another developer so the city can increase the tax base by building more expensive condo projects or other types of projects that would substantially increase a city's tax base.

It is likely that there will be another initiative on the ballot at some time in the future that clears up the language and wording for restricting eminent domain usage. The posting before this has an interesting conversation going on about this issue.

Here is also an interesting story from a ways back.

Eminent Domain: Being Abused?

Friday, November 03, 2006

Vote Yes On Proposition 90


  • Bars state and local governments from condemning or damaging private property to promote other private projects or uses.
  • Limits government's authority to adopt certain land use, housing, consumer, environmental and workplace laws and regulations, except when necessary to preserve public health or safety.
  • Voids unpublished eminent domain court decisions.
  • Defines "just compensation."
  • Government must occupy condemned property or lease property for public use.
  • Condemned private property must be offered for resale to prior owner or owner's heir at current fair market value if government abandons condemnation's objective.
  • Exempts certain governmental actions.

In an effort to address some of the opponents misleading statements and scare tactics, it is wise to read the actual wording of the proposition. Proposition 90 takes us back to what the original, limited use, of eminent domain was all about.

The mantra by various City Council members and even the San Ramon Legal Council stating that they would only use Eminent Domain in Redevelopment zones "as a last resort," is an error in logical and critical thinking. While cities seldom use the Eminent Domain clauses in their arsenal of so called "Redevelopment Tools," the very threat of having it on the books to be used "in a last case resort," is like having the government, holding a hammer over the head of individual property owners, and makes it much more likely that an aggressive developer could come in with the idea of making a ton of money using the Redevelopment Agency as a party to "market forces" and selling a proposal to the Redevelopment Agency / City Council to substantially increase a city's tax base with new private development projects.

The Trivalley Mayor's all came out against Proposition 90 because it places a substantial roadblock to new private redevelopment projects, where the possibility exists of having to use eminent domain on a individual property owner holdout for private developments.

Tom McClintock running for Lt. Governor, has recommended voting Yes on Proposition 90

Prop. 90 Protect Our Homes: YES! Restores the Fifth Amendment property rights protections in the Bill of Rights that the U.S. Supreme Court shredded with its infamous Kelo decision. Prop. 90 prohibits local officials from seizing homes and businesses for the profit of politically well-connected private interests, and requires government to pay you for any damage it does to your property.

In an article from: The Voice of San Diego
Pro: Prop 90 Reaffirms the Fifth Amendment
Proposition 90 is in response to that. When enacted, it will prevent churches and tire stores from being condemned for Costco, plumbing stores from being condemned for Home Depot, restaurants from being condemned for Lowe's, health care agencies and Toyota dealerships from being condemned for BMW, cigar stores from being condemned for hotels and a small developer's property from being condemned for a larger developer.

The bottom line is, with the passage of Proposition 90, it will completely change the way cities operate in their attitude toward the individual landowners. Cities will not be allowed to simply declare an area blighted because they want to place a new private Redevelopment project on the books. Government will have to go back to operating under the US Constitution instead of circumventing it.

The actual text of proposition 90 is as follows:

This initiative measure is submitted to the people in accordance with the provisions of Article II, Section 8 of the California Constitution. This initiative measure expressly amends the California Constitution by amending a section thereof; therefore, new provisions proposed to be added are printed in italic type to indicate that they are new.


(a) The California Constitution provides that no person shall be deprived of property without due process of law and allows government to take or damage private property only for a public use and only after payment to the property owner of just compensation.
(b) Despite these constitutional protections, state and local governments have undermined private property rights through an excessive use of eminent domain power and the regulation of private property for purposes unrelated to public health and safety.
(c) Neither the federal nor the California courts have protected the full scope of private property rights found in the state constitution. The courts have allowed local governments to exercise eminent domain powers to advance private economic interests in the face of protests from affected homeowners and neighborhood groups. The courts have not required government to pay compensation to property owners when enacting statutes, charter provisions, ordinances, resolutions, laws, rules or regulations not related to public health and safety that reduce the value of private property.
(d) As currently structured, the judicial process in California available to property owners to pursue property rights claims is cumbersome and costly.

(a) The power of eminent domain available to government in California shall be limited to projects of public use. Examples of public use projects include, but are not limited to, road construction, the creation of public parks, the creation of public facilities, land-use planning, property zoning, and actions to preserve the public health and safety.
(b) Public use projects that the government assigns, contracts or otherwise arranges for private entities to perform shall retain the power of eminent domain. Examples of public use projects that private entities perform include, but are not limited to, the construction and operation of private toll roads and privately-owned prison facilities.
(c) Whenever government takes or damages private property for a public use, the owner of any affected property shall receive just compensation for the property taken or damaged. Just compensation shall be set at fair market value for property taken and diminution of fair market value for property damaged. Whenever a property owner and the government cannot agree on fair compensation, the California courts shall provide through a jury trial a fair and timely process for the settlement of disputes.
(d) This constitutional amendment shall apply prospectively. Its terms shall apply to any eminent domain proceeding brought by a public agency not yet subject to a final adjudication. No statute, charter provision, ordinance, resolution, law, rule or regulation in effect on the date of enactment that results or has resulted in a substantial loss to the value of private property shall be subject to the new provisions of Section 19 of Article 1.
(e) Therefore, the people of the state of California hereby enact "The Protect Our Homes Act."

SEC 3. Section. 19 of Article I of the California Constitution is amended to read: SEC. 19. (a)(1) Private property may be taken or damaged only for a stated public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. Private property may not be taken or damaged for private use.
(2) Property taken by eminent domain shall be owned and occupied by the condemnor, or another governmental agency utilizing the property for the stated public use by agreement with the condemnor, or may be leased to entities that are regulated by the Public Utilities Commission or any other entity that the government assigns, contracts or arranges with to perform a public use project. All property that is taken by eminent domain shall be used only for the stated public use.
(3) If any property taken through eminent domain after the effective date of this subdivision ceases to be used for the stated public use, the former owner of the property or a beneficiary or an heir, if a beneficiary or heir has been designated for this purpose, shall have the right to reacquire the property for the fair market value of the property before the property may be otherwise sold or transferred. Notwithstanding subdivision (a) of Section 2 of Article XIII A, upon reacquisition the property shall be appraised by the assessor for purposes of property taxation at its base year value, with any authorized adjustments, as had been last determined in accordance with Article XIII A at the time the property was acquired by the condemnor.
(4) The Legislature may provide for possession by the condemnor 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.
(b) For purposes of applying this section:
(1) “Public use” shall have a distinct and more narrow meaning than the term “public purpose”; its limiting effect prohibits takings expected to result in transfers to nongovernmental owners on economic development or tax revenue enhancement grounds, or for any other actual uses that are not public in fact, even though these uses may serve otherwise legitimate public purposes.
(2) Public use shall not include the direct or indirect transfer of any possessory interest in property taken in an eminent domain proceeding from one private party to another private party unless that transfer proceeds pursuant to a government assignment, contract or arrangement with a private entity whereby the private entity performs a public use project. In all eminent domain actions, the government shall have the burden to prove public use.
(3) Unpublished eminent domain judicial opinions or orders shall be null and void.
(4) In all eminent domain actions, prior to the government’s occupancy, a property owner shall be given copies of all appraisals by the government and shall be entitled, at the property owner’s election, to a separate and distinct determination by a superior court jury, as to whether the taking is actually for a public use.
(5) If a public use is determined, the taken or damaged property shall be valued at its highest and best use without considering any future dedication requirements imposed by the government. If private property is taken for any proprietary governmental purpose, then the property shall be valued at the use to which the government intends to put the property, if such use results in a higher value for the land taken.
(6) In all eminent domain actions, "just compensation" shall be defined as that sum of money necessary to place the property owner in the same position monetarily, without any governmental offsets, as if the property had never been taken. "Just compensation" shall include, but is not limited to, compounded interest and all reasonable costs and expenses actually incurred.
(7) In all eminent domain actions, "fair market" value shall be defined as the highest price the property would bring on the open market.
(8) Except when taken to protect public health and safety, "damage" to private property includes government actions that result in substantial economic loss to private property. Examples of substantial economic loss include, but are not limited to, the downzoning of private property, the elimination of any access to private property, and limitations on the use of private air space. "Government action" shall mean any statute, charter provision, ordinance, resolution, law, rule or regulation.
(9) A property owner shall not be liable to the government for attorney fees or costs in any eminent domain action.
(10) For all provisions contained in this section, "government" shall be defined as the State of California, its political subdivisions, agencies, any public or private agent acting on their behalf, and any public or private entity that has the power of eminent domain.
(c) Nothing in this section shall prohibit the California Public Utilities Commission from regulating public utility rates.
(d) Nothing in this section shall restrict administrative powers to take or damage private property under a declared state of emergency.
(e) Nothing in this section shall prohibit the use of condemnation powers to abate nuisances such as blight, obscenity, pornography, hazardous substances or environmental conditions, provided those condemnations are limited to abatement of specific conditions on specific parcels.
This section shall be self-executing. The Legislature may adopt laws to further the purposes of this section and aid in its implementation. No amendment to this section may be made except by a vote of the people pursuant to Article II or Article XVIII of the California Constitution.
The provisions of this section are severable. If any provision of this section or its application is held invalid, that finding shall not affect other provisions or applications that can be given effect without the invalid provision or application.
This section shall become effective on the day following the election pursuant to subdivision (a) of Section 10 of Article II of the California Constitution.
The provisions of this section shall apply immediately to any eminent domain proceeding by a public agency in which there has been no final adjudication.
Other than eminent domain powers, the provisions added to this section shall not apply to any statute, charter provision, ordinance, resolution, law, rule or regulation in effect on the date of enactment that results in substantial economic loss to private property. Any statute, charter provision, ordinance, resolution, law, rule or regulation in effect on the date of enactment that is amended after the date of enactment shall continue to be exempt from the provisions added to this section provided that the amendment both serves to promote the original policy of the statute, charter provision, ordinance, resolution, law, rule or regulation and does not significantly broaden the scope of application of the statute, charter provision, ordinance, resolution, law, rule or regulation being amended. The governmental entity making the amendment shall make a declaration contemporaneously with enactment of the amendment that the amendment promotes the original policy of the statute, charter provision, ordinance, resolution, law, rule or regulation and does not significantly broaden its scope of application. The question of whether an amendment significantly broadens the scope of application is subject to judicial review.

Tuesday, October 17, 2006

All Business For Beta Court

Surprise, The San Ramon City Council Passed The Crow Canyon Specific Plan As Recommended.

Business owners, San Ramon citizens, planning commissioners, and most of the City Council members came to an agreement for the Crow Canyon Specific Plan and more importantly for the long term direction to have Beta Court continue to provide valuable business services for the San Ramon community without forcing mixed use housing on Beta Court.

The location of the Crow Canyon Specific Plan is as follows:

Approximately 130 acres (over 90 land parcels) bounded by the San Ramon/Danville city limit line to the north, Interstate 680 to the east, Crow Canyon Road to the south, and the San Ramon city limit line to the west.

Many citizen groups and businesses spoke out in fighting to retain these businesses for San Ramon. The threat of eminent domain for any area in San Ramon that is under a Redevelopment Zone is still very real. While City Council members all state that eminent domain would only be used as a last resort, the threat of it still hangs over the head of businesses and property owners.

The City Council talks about market forces driving the redevelopment in this area. The mayor claims that "market forces" will determine how this area is developed. We can only wonder what type of market forces will ultimately affect the landscape in this area.

As passage of this plan was met with a positive outlook for the businesses in the Crow Canyon Specific area, and more specific of the Beta Court business owners, they are still very well aware that the eminent domain issue remains a threat to each and every property owner in the Redevelopment Zones.

Tuesday, September 19, 2006

Eminent Domain Abuses

A Five Year State by State Report Examining the Abuse of Eminent Domain

The following report documents the abuses taking place in America today. It looks at cities just like San Ramon, that ended up using eminent domain to take over properties that were previously off limits to the local governments. There is a new movement affront from the people and also the Federal Government to stop these eminent domain abuses. Contact your Senators and Representatives to make sure the new bill becomes law this year.

Public Power, Private Gain
by Dana Berliner
The Despotic Power

As early as 1795, the U.S. Supreme Court described the power of eminent domain—where the government takes someone’s property for a "public use"—as "the despotic power." Eminent domain has the potential to destroy lives and livelihoods by uprooting people from their homes and businesspeople from their shops. With eminent domain, the government can force a couple in their 80s to move from their home of 50 years. Eminent domain is the power to evict a small family business, even if that means the business will never reopen.

The danger of such an extreme power led the authors of the U.S. Constitution and state constitutions to limit the power of eminent domain in two ways. First, the government had to pay "just compensation." And second, even with just compensation, the government could take property only for "public use." To most people, the meaning of "public use" is fairly obvious—things like highways, bridges, prisons, and courts.

No one—at least no one besides lawyers and bureaucrats—would think "public use" means a casino, condominiums or a private office building. Yet these days, that’s exactly how state and local governments use eminent domain—as part of corporate welfare incentive packages and deals for more politically favored businesses. This is the first report ever to document and quantify the uses and threats of eminent domain for private parties. We have compiled this information from published accounts and court papers covering the five-year period from January 1, 1998 through December 31, 2002. The results are chilling.

Download the entire report at Castle Coalition

Friday, September 08, 2006

Follow The Money

San Ramon Politics, Redevelopment, Eminent Domain, And Money Are In The Mix With The San Ramon City Council

Who Gets The San Ramon Redevelopment Bond Money?

In an article titled: San Ramon redevelopment on the agenda again, by Scott Marshall, reporter with the Contra Costa Times, reports about the issues facing the Beta Court business owners affected by the Crow Canyon Specific Plan, which involves redevelopment of the area surrounding and including Beta Court.

The San Ramon Planning Commission voted 4-1 to remove the housing overlay for Beta Court which in essence would mean that the thriving business owners would in all likely hood remain and continue to provide vital services to the residents. However, the San Ramon City Council could place this new plan with the removal of the housing overlay for Beta Court in jeopardy. In fact, a four-fifths vote is required for passage of the plan.

It has been reported that, "At least one City Councilman, Jim Livingstone, has publicly stated that he did not want the Beta Court Business owners to determine the direction of the Crow Canyon plan."

If the City Council does not approve this plan, then it goes back to the Planning Commission with two newly appointed commissioners that would in all likely hood be reversed and change it to call once again for the housing overlay on Beta Court.

Property owners would most likely be in a position of selling out to developers to reap more profits then would be generated from renting to the business owners. "A consultant's report found that the redevelopment area is 'economically blighted,'" and as such the Redevelopment Agency, which are the same five members of the City Council could use eminent domain to take care of any property owner stragglers refusing to sell out.

To clarify matters, Beta Court is not economically blighted but provides valuable services to the San Ramon citizens. The area is thriving with activity. The business owners have been profitable for years. If the City Council chooses to do what is right for the citizens and business owners of San Ramon then we can look forward to having local service providers for many years to come. If however, the City Council chooses to reject the protection of these valuable service providers, then the City Council will effectively be kicking businesses out of San Ramon.

Maybe it is time to start following the money. By-the-way, speaking of money, the city's Redevelopment Agency is going to be discussing on Tuesday, Sept. 12, before they place their other City Council hats on, in the City Council Meeting: "Whether to set a $59 million bond issue limit."

Beta Court, San Ramon, CA

Thursday, April 06, 2006

City Council Attempts To Justify Eminent Domain

San Ramon City Council

The San Ramon City Council meeting and the Redevelopment Agency meeting held on March 28, 2006 was filled with speeches from the City Attorney, Byron Athan and members of the San Ramon City Council, Mayor H. Abram Wilson and Councilmember David E. Hudson.

The City Attorney, Byron Athan gave a speech about how Eminent Domain has been around since the beginning of our country. The use of eminent domain was limited to public works projects such as roads, canals, and dams. Under the Eminent Domain passed in the redevelopment Agency amendment however, it allows for a much more encompassing use of eminent domain. As time has gone on, Eminent Domain has been used by other cities to do all sorts of things. See: Kelo v. New London. The attorney mentioned that one city had even used Eminent Domain to take over a "Private Golf Course." The attorney said he could not see this council using the eminent domain tool that way in the foreseeable future but felt it would be a good tool to have as, in his analogy, that being a "life-preserver."

Mayor H. Abram Wilson got into a tizzy when he accused certain groups of spreading false statements and half-truths concerning eminent domain. He said, "This is San Ramon, This is not Maine, this is not San Jose or San Francisco..."

Here's The Deal Mayor

Councilmember David E. Hudson, stated, "Eminent Domain is just another tool in our quiver, we do not intend to use it."

At this point, Mayor Wilson spoke up and said, "Eminent Domain is too expensive for the city to use. We would have to pay everyone's legal fees."

Councilmember Hudson also stated and clarified that this passage of Eminent Domain for the Redevelopment Agency encompasses all areas the Redevelopment Agency has jurisdiction over. He pointed out that there are instances where Redevelopment Agency Eminent Domain might and should be used instead of the Eminent Domain available to the city.

One local property owner spoke out in favor of Eminent Domain, and said he "was not scared of Eminent Domain." This in contrast to all of the other thriving business owners and property owners in the Crow Canyon Specific Plan redevelopment area that spoke out against Eminent Domain at other Redevelopment Agency meetings. This group had a letter read into the records at this March 8, City Council Meeting opposing Eminent Domain.

What Does This Mean For San Ramon?

With the unanimous passage of the San Ramon Redevelopment Agency Amendment, City Council now has at their disposal use of the Eminent Domain Tool. If they never intend to use it, why on earth would they have had to pass it now? There were other options. Council could have passed the amendment without including Eminent Domain. If there was ever a need for Eminent Domain in the future the City Council could have addressed it at that future time.

As Councilman Dave Hudson pointed out, the Eminent Domain Tool now covers a wide area.

This tool is more like a hammer over the head of all San Ramon businesses and property owners than a life-preserver. At anytime, the Redevelopment Agency can expand their domain. We can only hope that at least two Councilmembers in the future restrict the use of the Eminent Domain tool. That might be a false San Ramon hope... Just look at some of the stories about other cities like San Jose having implemented Eminent Domain and having expanded their use of the Redevelopment Agency, Rezoning, and this tool as time went on.

Other Links And Stories:

Eminent Domain Watch