Encinitas councilman defends restricting the use of eminent domain: North County (CA) Times, 7/16/05

By Adam Kaye

Despite skepticism from a colleague, [Encinitas] City Councilman Jerome Stocks on Friday defended his plan to restrict the city's use of the right known as eminent domain.

Stocks says his proposal would protect property owners from a 5-4 U.S. Supreme Court decision last month that expands eminent domain power so cities can take property from one private owner and sell it to another.

In most cases, governmental agencies use eminent domain powers to take property needed for public projects. Laws require the government to pay fair market value for the land and in some cases, cover relocation expenses and other costs.

At its meeting last week, the council voted unanimously to draft an ordinance that would forbid condemning private property and selling it to another private owner without a two-thirds vote of the city residents.

In casting his vote, Councilman James Bond expressed his misgivings.

He said he had taken an oath to uphold all laws. The ordinance would probably fail the test of time, and a future city council could rescind it, he said.

The proposed ordinance was a "feel-good notion," Bond said, and if someone has a better lawyer and more money, it would lose a challenge in court.

Stocks brushed off Bond's skepticism in an interview Friday.

"The Supreme Court gave local governments the absolute and direct ability to condemn private property for economic benefit," he said. "Just because (Bond) doesn't see the threat the way I do doesn't mean the threat doesn't exist."

The court's decision stemmed from a case involving some Connecticut homeowners who refused to sell their land for private development supported by the city of New London.

California cities can condemn private property for public projects, such as road or sewer construction.

Cities may not take private property for the sake of economic development, however, and the court's ruling does not change that, said Steve Deitsch, a Riverside attorney specializing in eminent domain law.

In California, only redevelopment agencies can take land from one private owner and sell it to another, he said.

A city council can form a redevelopment agency to capture increased tax revenue to pay for public improvements, foster economic development and eliminate blight.

Encinitas recently considered forming a redevelopment agency in Leucadia but shelved the idea after residents objected. The possibility of condemnations underscored their concerns.

Redevelopment agencies can condemn private property only if a plan approved when they are formed allows it, Deitsch said.

"I don't believe that the (Connecticut) case gives any greater authority to California cities," he said. "California law is clear on this subject. It allows only redevelopment agencies to acquire private property for land assembly to eliminate blight."

Stocks disagreed.

"This ruling says you don't need to find blight, and you don't even need a redevelopment agency," he said. "The city can just do it for economic reasons."

Stocks said he is not alone in seeking to raise safeguards against the court decision.

State Sen. Tom McClintock, R-Thousand Oaks, and Sen. Dean Flores, D-Shafter, have introduced a state constitutional amendment that would prohibit governments from seizing private property for anything other than public use, according to The Associated Press.

The council last week appointed Stocks and Councilwoman Christy Guerin to a subcommittee to write an ordinance with City Attorney Glenn Sabine.

Stocks on Friday said a draft of the ordinance should be finished in late August or September. He said he would explore language requiring a vote of the people to rescind the law.

Encinitas has used eminent domain eight times, and five of them were to expand Leucadia Boulevard and Quail Gardens Drive. Five of the condemnations were by consent of the property owners.

Stocks floated what he called the Encinitas Private Property Rights Act of 2005 at a press conference last month, one week after the Supreme Court ruling.

Any ordinance Encinitas enacts would not prevent restrict "legitimate" uses of eminent domain for public projects, he said.

North County Times: www.nctimes.com