The uproar caused by the U.S. Supreme Court's recent decision that many say will undermine private property rights has prompted California legislative leaders to take action to protect the state's private property owners. They are proposing a state constitutional amendment that would prohibit local governments from taking private property and turning it over to private developers for increased profits and tax revenue.
The proposed amendment could appear on the November special election ballot if all deadlines are met by the state Legislature. The proposed amendment would require property taken by eminent domain to be owned by governmental entities and used only for public purposes.
Failing that, there's still time to qualify the measure by initiative for the June 2006 general election ballot. To be approved, a state constitutional amendment must earn a two-thirds vote of the Legislature and majority approval by California voters.
Sen. Tom McClintock, R-Thousand Oaks, who introduced the amendment last week at a Capitol press conference, said the Supreme Court's decision in Kelo vs. City of New London "breaks the social compact that gives government its legitimacy and opens a new era where the rich and powerful can use government to seize the property of ordinary citizens for private gain."
In the Kelo decision the court ruled 5-4 against nine homeowners in New London, Conn. The property owners had resisted having their waterfront homes taken by eminent domain. The city wanted the properties in order to turn them over to developers for offices, restaurants and upscale homes.
"For government to take private property just because it will increase tax revenue is not a legitimate use of eminent domain," John Gamper, California Farm Bureau Federation director of taxation and land use, said. "We're extremely concerned about the far reaching implications of the Kelo decision and perhaps the proposed amendment to the California Constitution is the only way to provide protection to our family farmers and ranchers."
Existing state laws probably already blunt the U.S. Supreme Court's ruling in California, said Gamper. But he points out that state laws can be changed fairly easily, and property owners and organizations like Farm Bureau have to be vigilant to prevent erosion of landowner protections at the state level.
Under California law, a redevelopment agency can only condemn property in a blighted area that is predominantly urbanized. The definition of "blight" and "predominantly urbanized" are specifically defined in statute, Gamper said. "Farm Bureau also sponsored legislation in 1996 that strictly prohibited the taking of Williamson Act land for redevelopment and made it more difficult to take other agricultural land over two acres in size."
He said Farm Bureau will be analyzing all the potential impacts of the proposed constitutional amendment during the Legislature's upcoming recess.
McClintock said the court's ruling places private homes and businesses, as well as farms and ranches, at greater risk than ever because in California there are 6,000 public agencies that have the power to "seize your home, pay you pennies on the dollar for it, and then give it to somebody else for their own personal gain and profit."
In the wake of the high court's decision, McClintock said it now falls to the individual states to shore up private property rights that are no longer protected under the Bill of Rights. He said Senate Constitutional Amendment 15, co-authored by Dean Florez, D-Shafter, and its companion legislation, Assembly Constitutional Amendment 22, introduced by Assemblyman Doug LaMalfa, R-Richvale, will improve protections in California.
"As a farmer, I hold the value of property ownership and enjoyment as a paramount right and with the recent Supreme Court decision occurring in such close proximity to the celebration of our independence 229 years ago, I wonder if those farmers, colonists and settlers that rose up then would not expect the same from us now," LaMalfa said.
When the Legislature returns from its summer recess, it will have a three-day window to place the proposal on the November ballot. Failing that, McClintock said there still would be a month left to get it on the June 2006 ballot.
In Yolo County, the 17,000-acre Conaway Ranch, which is actively farmed and includes considerable wildlife habitat along the Sacramento River, is the target of an eminent domain proceeding. The right to take the land will be the subject of a trial in Yolo County Superior Court on Aug. 23.
In addition to containing Yolo County's largest gas fields, there are more than 50,000 acre-feet of surface water rights, along with groundwater and riparian rights that go with the land. The ranch also plays an important role in flood control and rural recreation.
The ranch was previously held by a bankrupt successor to PG&E Properties Inc. It was put up for sale to the highest bidder in a closed bidding process. Because of the closed bid the county, as a public agency, could not participate in the process.
After the county's efforts to negotiate with the utility were stymied, and with the clock running out on the private bidding deadline, the county board of supervisors chose last July to initiate eminent domain proceedings.
In December 2004, the ranch was sold to a Sacramento-based development consortium led by Steve Gidaro. Operating under the name Conaway Preservation Group LLC, the consortium purchased the ranch with knowledge of the county's pending eminent domain action, according to Yolo County officials.
Tim Sandefur, an expert on property rights with the Pacific Legal Foundation, said the use of eminent domain to take private property is a "nationwide epidemic. In just five years, there were over 3,700 cases nationwide of eminent domain being used to benefit private parties.
"Unfortunately, eminent domain abuse harms minorities and the poor the most," Sandefur said. "They tend to have less political influence, whereas companies like Nissan have a great deal of influence. In 2001, the state of Mississippi condemned 23 acres of minority-owned land to transfer to Nissan to build a car factory."
Sandefur said California is one of the most active states in condemning properties for the benefit of other private parties. Between 1998 and 2002, news reports indicate there were 23 different projects involving condemnation for private use in California. Development projects during these years involved more than 125,000 acres.
"Eminent domain abuse is legalized theft," Sandefur told the media during last week's press conference. "This is not a matter of Republican vs. Democrat or left vs. right. This is a matter of the perversion of government power."
Florez said getting the proposed amendment to the state Constitution approved will be a bipartisan effort.
"The Supreme Court's decision is far reaching, particularly for California," Florez said. "This is something that needs debate and to be talked about very frankly in Sacramento. It's clear to us that California property owners need to be justly compensated, not just compensated and there's a big difference between the two.
"As a past community banker who has worked with many redevelopment agencies I have seen the abuse (of eminent domain) personally and professionally," Florez said. "This proposed amendment will tell those who want to hand property over from the poorest to the richest that those days are over."
McClintock said a bipartisan consensus is developing around the "self-evident truth that the most fundamental purpose of government is to protect the individual rights of its citizens."
"We have introduced the measure with 45 co-authors--more than a third of the state Legislature including four Democrats," he said.
California Farm Bureau Federation: www.cfbf.com