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CES In The News
Los Angeles Daily Journal
Monday April 2, 2007
Proposals to Curb Eminent Domain Pile Up
By Max Follmer
Daily Journal Staff Writer

LOS ANGELES - Turns out, the defeat of Proposition 90 in November marked only the beginning of the political fight over eminent-domain reform in California.

No fewer than five proposals to curb the government's ability to seize property will soon be wending their way through Sacramento.

Two sets of interest groups have proposed initiatives with the attorney general's office that could put eminent domain back on the ballot in 2008.

That's in addition to two constitutional amendments - one in the state Senate and the other in the Assembly - introduced by lawmakers in Sacramento.

The backers of one of the proposed ballot measures say it is merely their Plan B. What they're really after, they say, is a solution that would avoid a costly initiative campaign. That means a third proposed constitutional amendment could be introduced soon in the Legislature.

Regardless of which measure gains enough traction to become law, land use and real estate lawyers are almost certain to see eminent-domain authority curbed in some fashion before the end of 2008. Political observers in Sacramento agree momentum is gaining quickly among lawmakers for an overhaul of eminent-domain authority.

Proposition 90's narrow defeat - 53 percent to 47 percent - in November was widely seen as a wake-up call by officials that voters statewide wanted some sort of check on the power of government to take private property.

The current proposals run the gamut from a narrowly tailored measure to prohibit authorities from seizing owner-occupied homes and turning the land over to private interests, to broad eminent-domain curbs that would greatly increase the cost of seizing private land and render it virtually impossible to take any land in California for private commercial development.

The most modest proposal, a ballot measure backed by a coalition of California's cities, homeowners' advocates and conservationists, would amend the state constitution to prevent owner-occupied homes from being turned over to commercial interests.

If enacted, the measure would preserve cities' ability to seize commercial property and apartment buildings, while taking individual homes off the table. Backers of the proposal say it responds to a public outcry for protection that followed the U.S. Supreme Court's decision two years ago in Kelo v. New London, Conn., 126 S.Ct. 24 (2005).

"What we're trying to do is put forward reasonable eminent domain reform that gives homeowners protection and protects against abuse," said Kathy Fairbanks, a spokeswoman for the measure's proponents.

In Kelo, the high court held that private property could be transferred to private developers if the resulting economic development project held enough public benefit.

Under the proposal backed by the League of Cities and its allies, Kelo would no longer be applicable in California, said Cathy Christian, an attorney at Nielsen, Merksamer, Parrinello, Mueller & Naylor in Sacramento, who is advising its proponents.

"If this measure passes, it will be understood that you cannot acquire an owner-occupied house for subsequent private use, even if it's in a blighted area," Christian said.

Redevelopment agencies would no longer be able to condemn homes in designated redevelopment areas.

"It means some redevelopment projects can't be done anymore," Christian said.

The measure still would allow government to acquire land for projects that benefit the public, such as libraries, parks and schools. Officials also would retain their ability to combat drug dens, crack houses and other nuisances that threaten public safety.

Fairbanks said that, although the group is ready to pursue a citizen initiative campaign, its first priority is garnering support for a legislative package they hope to unveil this month. That proposal would contain similar provisions to the ballot measure but also would contain protections for small businesses, she said.

The failure to include mom and pop stores in the League of Cities-backed proposal has prompted the fiercest opposition from early critics. They point out that small businesses, not individual homes, are the most common targets of eminent domain.

"This provision would seem a meaningless sacrifice intended to avert strong property rights protection," the Pacific Legal Foundation wrote in an online critique of the proposal.

Fairbanks said her group has been in talks with some potential opponents, including the Howard Jarvis Taxpayers Association, to get support for the legislative package.

"We did have input into the language," said Jon Coupal, a spokesman for the taxpayer advocate group. "At this point, I'm not sure that we are part of the coalition that is pushing it."
Though his group still has its reservations, Coupal said the language "is a lot further than I've seen them go before."

The California League of Cities, the League of California Homeowners and the California League of Conservation Voters joined a host of other organizations and elected officials in opposing Proposition 90 in November. The Howard Jarvis Taxpayers Association supported the measure.

Coupal's group has joined with the California Alliance to Protect Private Property Rights and the California Farm Bureau Federation to back an alternative ballot initiative that would impose far more sweeping restrictions on eminent domain.

Their proposal, unveiled shortly after the November elections and refined earlier this year, would prevent all private property, not just owner-occupied homes, from being turned over to private developers.

The measure would allow eminent domain to be used to "advance a legitimate government interest" or preserve public safety. It also would permit state and local government to act to preserve farm land or protect timber interests.

And a property's former owners would be given first dibs on repurchasing their land before a public agency could sell it to another owner or use it in any way that is substantially different from the stated use at the time of the seizure.

This Picture Did Not Appear In the Original Version of This Article
However the measure also bans rent control in California, which could prove a hard sell at ballot boxes in Los Angeles and the Bay Area. Affordable housing activists already are organizing opposition to the move, said Larry Gross, executive director of the Coalition for Economic Survival
in Los Angeles.

"It is nothing short of a Trojan Horse," Gross said of the proposed ballot initiative. "It's all about landlords being able to raise rent as much as they want."

Like the League of Cities and its allies, Coupal said his group would prefer to see a legislative solution rather than to pursue a costly citizen initiative campaign. In addition to his discussions with the League of Cities coalition, Coupal said his organization has expressed support for a pair of constitutional amendments introduced by state Sen. Tom McClintock, R-Thousand Oaks, and Assemblywoman Mimi Walters, R-Laguna Hills. Both have championed eminent domain reform in the past, and Walters was the honorary co-chair of the Protect Our Homes Coalition that spearheaded the drive to pass Proposition 90.

McClintock's bill closely mirrors the ballot measure backed by the Howard Jarvis Taxpayers Association and its allies, without the rent control ban.

Walters' bill, ACA2, is shorter and more narrowly tailored. It does not contain the abandonment or compensation clauses of the other proposals. Both bills are pending in committees. Either measure would have to be approved by two-thirds of each house of the legislature in order to win passage.

Both proposed ballot initiatives are now being reviewed by the state attorney general's office. If they pass legal muster, supporters will be able to begin collecting the roughly 695,000 signatures needed to qualify for the 2008 election.

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