Last June, the Supreme Court of the United States (SCOTUS) committed an abomination. Now California has a chance to say, “Not in our state!” First let me give some background information for the uninitiated, then I will discuss what is happening in California and how Californians can get involved. If you are well schooled in eminent domain abuse, jump down to the paragraph that starts out with, “Now let’s look at the current state of affairs in California.”
The Supreme Court case, Kelo v. New London City, put the SCOTUS stamp of approval on the practice of using eminent domain to transfer property from one private party to another in the name of economic development. Translated, economic development means a higher tax base for the city based on redeveloped land regardless the condition of properties in question by the current owners. Putting it bluntly, homes don’t produce as much tax revenue as commercial development so your home isn’t safe if your local government is approached by a private developer who wants your property who wants to force you to sell to him for less than market value. If you have a 100% mortgage on your property, tough; you’ll be expected to make up the shortfall.
In California, before and since the Kelo decision, governmental agencies have abused eminent domain and they don’t appear to be shy about it. In the case of the Gran Havana Cigar & Coffee Lounge in San Diego, the developer wanted thriving commercial property so he bought adjacent property and allowed it to become truly blighted, then moved to have the entire area deemed blighted so he could build on not just the property he purchased, but on the existing, thriving commercial property. The blight was concentrated to his own property and was intentional.
Currently in Yolo County, a group of investors are battling with the County over the Conaway Ranch. The upshot boils down to some very suspicious back-room dealing. The land is under the zoning jurisdiction of Yolo County so development cannot occur without county approval. It is currently used as wetlands and farming property and includes extensive water rights. The County’s stated interest in the property is to prevent it from being developed by the investors. Nevermind Yolo County already has the power to prevent development on the property by way of zoning restrictions and permit statutes. My mother always told me, if you want to find out why something is happening, follow the money. This is where the Rumsey Band of Indians, who run the Cache Creek Indian Casino, come into play. They have offered to loan Yolo County $50 million dollars to purchase the property but no loan terms have even been discussed according to those involved. The tribe is supposedly willing to work out the terms of the loan after the fact. Excuse me if I smell a week-old steelhead in that arrangement. Estimates of the property value is between $100 million and just under $400 million. If you thought people were supposed to receive fair value for their property under eminent domain, you would be half correct.
The way eminent domain proceedings usually take place bears no resemblence to a fair transaction. First, the developer or government agency targets your property. Then they approach you with a low-ball offer if they are feeling magnanimous. If you don’t go for their deal, they talk to the local regulating agency members over dinner or golf and arrange to have the property declared subject to eminent domain. Once that happens, the government sends in an appraiser who considers the fact that the property is subject to eminent domain, significantly lowering its marketability, and slaps an appraisal on the property lower than the original low-ball offer. The government then pays that artifically lowered amount and sells it to the developer. Even when the property is to be used for a true public purpose such as a road or school, the artifically low appraisal technique is used. This is wrong.
In the Kelo case, one of the owners was 87 years old and had lived in the same house since the day she was born. It would be sad to see her lose her home because the city wanted to put in a visitor’s center, but when the public purpose is higher tax revenues, we are talking about a major injustice. Part of the reason this type of injustice is allowed is because the rights guaranteed in the U.S. Constitution have been slowly eroded over the years by SCOTUS decisions that have taken previous bad decisions and expanded their flawed logic a little at at time.
To understand how far we have come from the intent of the Bill of Rights to our current situation, we need to see the pertinent guarantee in context in the Bill of Rights. The Fifth Amendment states, “No person shall… be deprived of life, liberty, or property, without due process of law…” The guarantee of property rights is mentioned in the same breath with life and liberty and given the same protection. It shall not be taken without due process of law. In the case of one’s life, due process of law consists of a trial finding one guilty of murder or treason, thus leading to the death penalty which of course leads to several automatic appeals. In the case of one’s liberty, due process consists of a trial finding one guilty of breaking the law, thus leading to imprisonment. In the case of property taken by eminent domain for private use however, due process has come to mean the convening of a redevelopment agency, no trial finding the owner guilty of any crime, leading to confiscation of one’s property, then making a mockery of the last phrase of the Fifth Amendment, “…without just compensation,” by offering a percentage of the property’s real worth, thus mocking the Bill of Rights and the owner whose property they have taken. If they really were offering just compensation, they wouldn’t need to confiscate the property, they could just buy it in 95% of the cases.
Now let’s look at the current state of affairs in California. In response to the Kelo case and the public outcry that followed, three bills were introduced in the California Legislature. These bills varied in their potential ability to prevent or even limit eminent domain abuse but not one of them reached the floor for a vote. Not one of them was successful.
With the legislature unable or unwilling to pass any sort of eminent domain reform, no matter how limited or ineffective, several ballot initiative propostions have been submitted to the Secretary of State for inclusion in the upcoming elections. I believe six were submitted, but due to lack of support, only two remain viable.
The Anita Anderson proposition, also known as the “Protect Our Homes” proposition is the weaker of the two, offering exceptions for things like “blight.” This may sound reasonable to most people; who wants blight in their neighborhood, right? If the legal definition of blight was in line with the dictionary definition, it would be reasonable. It is not. When it comes to redevelopment issues, blight can mean your neighborhood doesn’t have enough banks or too many liquor licenses, even if those liquor licenses are for fine dining establishments. Blight can mean your neighborhood has too diverse a mix of large and small lots. And remember, the premium properties in the neighborhood become subject to eminent domain along with the ones that are causing the supposed blight. Your property can be the highest valued in the neighborhood, free of crime, impeccably maintained, and updated to meet the very latest building codes and still be subject to eminent domain because your neighbor two blocks down and three streets over has a run down house with cars parked on the lawn or someone years ago split a lot, producing an uneven mixture of lot sizes.
Another exception in the Anderson proposition is for pornography and obscenity, presumably referring to establishments such as adult book stores and strip clubs. This may sound reasonable until you look at just how this can be abused. The same agency responsible for issuing adult business permits can use the existence of such businesses to condemn the property of anyone in the surrounding neighborhood. In other words, the government can use eminent domain to clean up the supposed mess they created. Nevermind the fact that adult businesses are, everywhere I have seen, in industrial districts, prohibited by law from being within a certain distance of schools, day care facilities or other places where children might frequent.
Fortunately, the Anderson proposition is not the only one left. The “Limit Eminent Domain” (LED) proposition is simple, to the point, and has teeth. While it too offers some exceptions, they are reasonable and don’t provide the types of loopholes that exist in the other proposition. The LED proposition also has the advantage of having readily available petitions that can be downloaded, printed and signed. It is supported by a wide range of grass roots organizations including the Coalition for Redevelopment Reform and Neighbors for Responsible Reform as well as the Intitute for Justice, a legal foundation that represents individuals whose most basic rights are denied by the government–like the right to earn an honest living, private property rights, and the right to free speech.
In order for this initiative to appear on the ballot for California voters, roughly 600,000 signatures must be gathered on petitions. The steering committee, which consists of non-partisan volunteers, has set a goal of 800,000. This is mostly because there are always some signatures that are thrown out once they are reviewed by election officials. Invariably someone writes in cursive instead of printing or lives outside the county for that particular petition. At any rate, all signatures must be in by the end of the month so we need to get as many as possible as fast as possible. This is where you come in.
Please visit the official website for the proposition at www.limiteminentdomain.com download the petition, make sure to follow the limited, but important, instructions about gathering signatures and get everyone you know to sign one. Polls after the Kelo decision showed 85% of Americans disagreed with the decision so you don’t risk offending many people by talking politics. Nobody wants their property taken from them. They will be glad to sign.
jeffersonish