Eminent domain ruling not understood: [Fairfield CA] Daily Republic, 8/5/05


By Robert Lando

Given the media sound bites, it's easy to understand why public opinion has weighed so heavily against the Supreme Court's ruling in Kelo vs. City of New London, Conn.

In that case the court ruled that the city of New London could use its power of eminent domain to purchase 15 homes on property needed to implement an ambitious redevelopment plan that would result in the condemned property being owned by a private developer. What made the case newsworthy was New London's frank admission that the area was not "blighted," a designation ordinarily used to justify redevelopment. Rather that city needed to implement its redevelopment plan in order to help relieve the community's "economic distress."

The court's opinion outraged conservative California congressman and governor wannabe, Tom McClintock, who declared that a government agency could now "literally take a house from someone it doesn't like and give it to a person it does like."

That comment, although breathtakingly wrongheaded, was typical of the angry denunciations of the Kelo decision by conservative property rights advocates at one end of the political spectrum and liberals, at the other, who railed against the notion that governments should have the power to side with greedy developers against homeowners.

Redevelopment laws have been around for at least 50 years. Those, like California's redevelopment statutes, give local governments the power to cure "blight" by acquiring private property, either voluntarily or by condemnation, and then selling it to private interests who must develop it in accordance with an established redevelopment plan. In addition to the obvious benefit of clearing slums and other blighted areas, laws such as California's give communities monetary incentives for implementing redevelopment by allocating to them a disproportionate share of the real property tax increases that result from development.

Under the tutelage of former City Manager, B. Gale Wilson, Fairfield was a leader in the creative use of redevelopment laws. In fact, Fairfield's proclivity for finding open space to be "blighted" within the meaning of those laws caused the Legislature to tighten the definition of that word for redevelopment purposes. Even so, California, like most states with redevelopment laws, gives cities broad discretion in determining what constitutes blight and what land can be included in a redevelopment area (and therefore made subject to the power of eminent domain) in order to cure blight.

The reaction to the Kelo case indicates that the public's attitude toward the power of eminent domain is lagging about 50 years behind its attitude toward land-use controls and zoning. It is settled law that governments can exercise enormous control over the uses that can be made of land. It can legally charge huge fees for building permits, limit development to one unit per 260 acres in agricultural areas, limit the establishment of certain kinds of new businesses in commercial areas to protect existing businesses from competition and impose bewilderingly detailed standards for the size, color, height, and design of structures.

The majority of voters seem quite happy with the benefits derived from modern land use controls and the recent trend toward "smart growth" policies that restrict the outward expansion of cities in favor of filling available areas inside existing urban boundaries with high density development.

Faced with growing opposition to urban sprawl and limitations on development in the form of state and federal laws protecting wetlands, endangered species and farmland, it is not surprising that local governments would want the power to use eminent domain to purchase property that blocks the implementation of important land-use plans.

Assuming that it is appropriate to force the owner of a well-kept house with a nice yard in a very bad neighborhood to sell in order to implement a plan that would eliminate neighboring slums and crack houses (a common situation when blight removal is the focus of redevelopment), it would not be unreasonable for a city to want to use the power of eminent domain to purchase a hog farm blocking development of a modern industrial park or a machine shop located in the middle of a planned, low-cost housing project.

California's housing, energy and transportation crises are all largely the result of abandoning old ways of doing things without first creating the institutions needed to implement the new ways. California's legislators should carefully consider this sad fact before rushing to judgment about the Kelo case.

Daily Republic: www.dailyrepublic.com

Robert Lando is a Fairfield attorney who specializes in real estate law