Cities' eminent domain rights face test: Whittier (CA) Daily News, 3/27/05

By Sonya Geis

Eminent domain. It's the ultimate exercise in government power over individual property owners. A city can forcibly buy out a homeowner and take over his land, with the argument that the public would benefit more from a shopping mall than a private house.

But that power could be significantly curbed after a U.S. Supreme Court decision this spring. The ruling has a potentially significant impact on how local cities do business.

"Eminent domain is used infrequently, but it's used in key instances that might be the difference in those projects,' said John Shirrey, executive director of the California Redevelopment Association. "A lot of people are waiting with bated breath for the ruling.'

The question before the Supreme Court is whether a city may take property from one set of private owners and turn it over to different private owners, instead of keeping it for public use such as a library or road. Courts have upheld the practice in the past, based on the argument that added tax revenues are a "public good.'

In the Supreme Court case argued last month, Kelo v. City of New London, a Connecticut city attempted to seize the homes of Susette Kelo and her neighbors to add to a large development project built around a Pfizer research facility. The city argued that added tax revenues from the project constitute a "public good' as much as a road. Kelo refused to sell.

The Supreme Court justices could decide the case with a very narrow ruling that would apply only to Connecticut. Or they could take the opportunity to make a sweeping judgment that would affect cities nationwide.

The California Redevelopment Association filed a friend-of-the- court brief in favor of keeping the ruling narrow.

Shirrey points out that under California law, redevelopment agencies may only use eminent domain for economic development purposes on land that has been designated "blighted.'

With a broad Supreme Court ruling, Shirrey said, potentially "we would not be able to undertake use of eminent domain for any economic development project.'

George Lefcoe, a real estate law professor at USC, said he thinks such a sweeping ruling is unlikely.

"This is a very legitimate redevelopment project in New London. It's not a tax grab,' he said. "I'm going to fall off my chair [and] you're going to hear a big thud if they don't uphold existing law in that case.'

Plenty of property-rights advocates hope the Supreme Court surprises the experts.

"I think they should simply ban the practice of taking one person's land and giving it to another. I think it's unlikely they would do that, but I think they should,' said Pasadena attorney Chistopher Sutton. Sutton represents the Hawkins family in an eminent domain fight with Temple City officials.

Sutton, who led a fight against eminent domain in Montebello in the 1980s, said requiring a city to declare an area "blighted" before using eminent domain to hand it over to developers is no great safeguard against government abuse of power.

Loraine Wallace Rowe, chairwoman of the Coalition for Redevelopment Reform in San Jose, agreed. She said the definition of blight has gradually expanded to allow cities to justify using eminent domain even in areas with expensive homes.

"To say, 'We could get more tax money for that property with 20 condos on it than with one house' that basically says that any single-family house could be considered blight,' she said.

City officials defend the use of eminent domain as rare and necessary.

"There are not currently any (imminent domain) cases going on, but you always have that potential out there,' said Jeff Collier, Whittier's community development director. "If they take it away, we lose a powerful tool.'

He also noted that cities can offer tax breaks to the owners of properties taken by eminent domain.

"There are some benefits that can end up helping everybody,' he said.

The Supreme Court ruling is expected in May or June.

Whittier Daily News: www.whittierdailynews.com