No, we are not safe from eminent domain! Crime & Federalism, 7/15/05

By Timothy Sandefur
The redevelopment bureaucrats are beginning their counterattack in the wake of the outrage over Kelo. Their spin is that Kelo makes no difference to Californians, because California has a law that limits eminent domain to cases of “blight.”

But this is just the sort of hairsplitting nonsense that gives lawyers a bad name. Sure, the California Redevelopment Act (Health & Safety Code, § 33000, et seq.) requires a city to declare a neighborhood blighted before it can use eminent domain, but look at the criteria that the law establishes for a blight designation (§ 33031):

Factors that…substantially hinder the economically viable use…of buildings [include]:

• substandard design, inadequate size given present standards and market conditions, lack of parking, or other similar factors.
  
• Adjacent or nearby uses that are incompatible with each other and which prevent the economic development of…the project area.
  
• The existence of subdivided lots of irregular form and shape and inadequate size for proper usefulness and development that are in multiple ownership.

Factors like these are vague and subjective, and requiring the development barons to write a declaration of blight is a meaningless protection for homeowners; it’s just a procedural hurdle that bureaucrats find it easy to jump over.

And what if they declare property blighted when it’s not, like Ahmad Mesdaq’s cigar store in San Diego? Remember, he went to court to challenge the designation, and the trial court said that he was not allowed to introduce any evidence to challenge the city’s decision to take his property. The Court of Appeal affirmed and the Supreme Court denied review.

Worst of all, the condemnation lords claim that they only use eminent domain as “a last resort.” They love this phrase, but of course they use it as a last resort. A thief only hurts you if he “has to,” right? If you hand over your property, nobody will get hurt. Of course, the redevelopment czars “resorted” to eminent domain 223 times in five years for the benefit of private parties.

Whatever you do, don’t let the bureaucrats lie to you. Kelo put the seal of approval on government programs that take property from those who have less wealth and political influence and give it to those who have more wealth and political influence. It’s a massive injustice that no procedural paperwork is going to help. Eminent domain abuse is a threat to every American, including Californians.

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Crime & Federalism: http://federalism.typepad.com/crime_federalism

Timothy Sandefur is an attorney with the Pacific Legal Foundation: tmsandefur@gmail.com