Eminent domain debated: Davis (CA) Enterprise, 11/18/05

By Elisabeth Sherwin

Superior Court Judge Tim Fall made one thing perfectly clear on the first day of Yolo County's eminent domain hearing: He is not interested in whether eminent domain is a good thing or a bad thing, only whether it is legal.

“The court's job is to decide whether the law allows the taking,” he said Thursday, addressing attorneys and members of the public gathered in his courtroom.

“This is not an issue of wisdom but law,” he added.

Fall made it clear he did not want to decide on the wisdom of eminent domain, the right of government to take private property for public use.

“This court runs screaming in the other direction from attempting to do so,” he said.

With that, Fall dispensed with opening statements from the attorneys and spent the morning ruling on nine motions that will help shape evidentiary and other matters connected to the case. The case was scheduled to continue today.

The issue to be resolved is the right of Yolo County to take a 17,300-acre piece of property known as the Conaway Ranch, which is west of Sacramento between Davis and Woodland. The ranch is privately owned by a group of Sacramento developers and investors headed by developer Steve Gidaro. Gidaro says he does not want to sell his land.

Defendant Gidaro was present in the courtroom all day Thursday.

“It's interesting, I'm learning a lot,” he said during a break.

Attempts to reach a settlement before going to trial were not successful.

Supervisors Helen Thomson of Davis and Mike McGowan of West Sacramento and County Administrator Sharon Jensen are listed as witnesses for the plaintiffs but were not in the courtroom.

Attorney Stuart Somach and co-counsel Kirk Trost are representing Yolo County, and attorney Gary Livaich and co-counsel John Feser are representing the Conaway Preservation Group.

Those who did not already know that Fall keeps a tight rein on his courtroom learned quickly.

When Fall asked Feser a question, Feser started to reply by saying, “You put me on the spot ...”

Fall quickly said: “The statement that the court has put you on the spot can be interpreted as a criticism; rephrase.” Feser did so.

The county says it wants to buy the land to preserve status quo and prevent it from being developed. With the land come valuable water rights from the Sacramento River.

The county has said the protection of the water resources is a health and safety issue; likewise, the flood control benefits the ranch has to offer is a health and safety issue, the county argues.

“The court is hoping for more evidence than a staff person writing in a report that if someone buys (the ranch) they might sell (the water),” Fall said. “It needs credibility.”

During the afternoon hearing, Somach walked the judge through the administrative record detailing for him, page by page, the various health and safety issues authorities say would be remedied by the eminent domain action.

Somach said he was troubled by the suggestion that he had to show an imminent threat to water rights or flood control options before invoking eminent domain.

“This notion that somewhere there has to be a threat - I don't know where that legal standard is,” Somach said. “It's enough to say that keeping water in the county is important and flood control is important.”

“I will put the defense to the test of supporting what they have proffered,” Fall said.

The hearing was scheduled to continue at 9 a.m. today, with the defense presenting its case.

The county filed its intention on July 8, 2004, to acquire the property through eminent domain by forcing the owners to sell. Gidaro and his partners bought the property in December 2004 for $60 million.

In an earlier interview, Gidaro said he and his partners could realize a return on their investment without developing the ranch land. The county is worried that Gidaro would do that by selling water.

“Water is the most significant issue,” Supervisor Thomson maintained earlier. “It is the main reason we got into this. People should be very worried about having water sold out of county.”

The county has maintained that if it buys the property, it will protect status quo while the property is managed through a Joint Powers Authority.

To that assertion, Gidaro asks: “Why is it necessary for the county to take my land and continue doing what I'm already doing?”

In anticipation of acquiring the ranch, a Joint Powers Authority has been formed, which includes representatives from the county's four cities, the county, plus UC Davis and the Yolo County Flood Control and Water Conservation District.

The Rumsey Band of Wintun Indians has agreed to finance the purchase of the ranch for the county.

Although a legislative effort was made to give the tribe a seat at the JPA table, Gov. Arnold Schwarzenegger vetoed that bill last month.

Davis Enterprise: www.davisenterprise.com