Initiative challenging Conaway plan halted: Davis (CA) Enterprise, 3/6/05

By Elisabeth Sherwin

Woodland resident Michael Contreras received some discouraging news late last week when the county's legal counsel found the subject of his proposed initiative — eminent domain — could not be challenged.

Contreras wanted to put an anti-eminent domain initiative on the ballot. It would require Yolo County to stop all eminent domain proceedings until it had a majority of voters approving the action against an unwilling property owner.

Contreras announced at the Jan. 26 meeting of the Conaway Ranch Joint Powers Authority that he intended to move ahead on his initiative specifically to stop the county from taking the 17,300-acre Conaway Ranch land by condemnation, a legal process that the county began last summer.

On Thursday, County Counsel Steve Basha released his legal opinion.

"This office has determined that the subject of the proposed initiative is not legally valid," he wrote. "This determination is based on appellate court decisions that hold that the power of eminent domain is a matter of statewide concern (and not subject to local regulation)."

More than 30 years ago the state Supreme Court ruled that a taking by eminent domain is not a municipal affair, but a matter of statewide concern that may be regulated only by the state Legislature.

"Accordingly, even if the proposed initiative were to obtain the requisite signatures and be approved by the electorate, it would be invalid," Basha wrote.

Contreras could not be reached for comment Saturday.

But Contreras was one of several opponents of the county's position on eminent domain and the Conaway Ranch who have spoken out recently, including the Yolo County Farm Bureau, the Yolo County Taxpayers Association, former state Sen. Jim Nielsen and the Sacramento-based People's Advocate.

The county additionally angered people when it canceled all future Conaway Ranch Joint Powers Authority meetings until the eminent domain issues is settled. The lawsuit is due to be heard in Yolo County Superior Court perhaps by June.

JPA members include Yolo County; the cities of Davis, Woodland, Winters and West Sacramento; UC Davis; and the Yolo County Flood Control and Water Conservation District. The JPA was set up to manage the property, but the county is attempting to buy the property.

In July, Yolo County supervisors reluctantly moved to initiate legal eminent domain proceedings to acquire the ranch property in the Yolo Bypass for public benefit.

In mid-December, the property, which includes farmland and 50,000 acre-feet of water rights, was purchased by Steve Gidaro, a Sacramento developer, and a group called Conaway Preservation Group, LLC. The land was purchased from the National Energy and Gas Transmission Inc., formerly known as PG&E Properties. The purchase price is believed to be about $60 million.

The Conaway Ranch JPA had been meeting monthly but little action could be taken while the county is involved in the court action.

"The county's involvement in eminent domain proceedings have, for the short term, made it practically impossible for the county to fully utilize the technical expertise of the authority members in developing a long-term management plan for the ranch," said Suzanne Mikesell, county public information officer.

"If and when the county becomes the owner of the ranch, it will be in a much better position to work with JPA members to develop a long-term management plan for the ranch," she added.

For this reason, Supervisor Mike McGowan, chairman of the Joint Powers Authority board, requested that JPA board meetings be postponed.

"Upon the successful conclusion by the county of its eminent domain proceedings, JPA board meetings will reconvene and the county and the JPA board will seek public input and participation into the development of an effective long-range management plan for the ranch," Mikesell added.

But several groups and individuals are urging the county to end its eminent domain effort.

"I believe it is time to reconsider," said former state Sen. Nielsen. "The magnitude of this undertaking and fiscal consequences, the lack of public input and knowledge, the concomitant lack information and direction among JPA members, the lack of planning, the accruing costs of consultants and legal fees warrant a 'whoa' to the eminent domain proceedings."

However, if the eminent domain process is halted, it won't be thanks to a voter-approved initiative.

Public documents relating to the Conaway Ranch can be found at the county's Web site, www.yolocounty.org

The Davis Enterprise: www.davisenterprise.com


Case could redefine eminent domain: (Hampton Roads VA) Daily Press, 3/5/05

The Supreme Court could change the law allowing land to be seized and turned over to developers

By Fred Carroll

Frank Ottofaro fought Hampton officials all the way to the state Supreme Court when they condemned a house he owned for a road to the Power Plant, a retail hub subsidized by the city but built by a private developer.

Ottofaro lost.

Even so, he refuses to drop the fight. Two years later, he still cusses city officials even as he recovers from surgery to remove a kidney stone.

"I'm for progress but not for stealing people's property," Ottofaro said. "They violated my constitutional rights. I don't know why you take the Constitution and rip it up in pieces."

A case before the U.S. Supreme Court could please people like Ottofaro by redefining the power of eminent domain - the government's right to seize private property as long as it's for a public use and the owner gets fair compensation.

The decision could restrict the use of property condemnation in instances where government turns land it has seized over to private developers for construction, such as Virginia localities can do when redeveloping blighted neighborhoods.

"It's a quarrel over how expansive is the meaning of public use," said William Van Alstyne, a law professor at the College of William and Mary.

Riverfront residents of New London, Conn., sued to halt town officials from demolishing their homes to clear the way for an office complex that complements a nearby pharmaceutical company.

Town officials describe the project as a renewal effort that ultimately benefits residents by bringing in new jobs and boosting tax revenues. Opponents call it a land grab that benefits the private developers, not taxpayers. Van Alstyne said the court's decision to hear the case surprised legal observers who considered the issue settled.

Governments traditionally used eminent domain powers for direct public uses - such as building a road or school. But a 1954 Supreme Court ruling allowed governments to take property and resell it to private developers for projects that overhauled blighted neighborhoods.

Most legal observers don't expect the justices to overturn the earlier ruling after hearing them question lawyers, Van Alstyne said.

"Otherwise, the race is on," he said.

Regardless, Mark Flynn, legal services director for the Virginia Municipal League, doubts the ruling will change eminent domain use in Virginia, which handles condemnations differently than Connecticut.

In Connecticut, government officials can take land for economic development - regardless of its condition - if they show that tax revenues will increase.

In Virginia, localities must show that an area is predominantly blighted and outline a redevelopment plan for it. Then if a property owner refuses to sell, officials can condemn the land.

"We don't do it very often," Flynn said, "but it is important when it does happen - to the landowner and the locality."

For example, Newport News housing officials figure they've condemned a single lot - excluding those condemned because ownership was unknown or uncertain - over about two decades for a neighborhood of new houses and a proposed industrial park.

Local officials consider eminent domain a powerful negotiating tool that forces otherwise uncooperative landowners to deal in good faith with government officials.

Newport News Vice Mayor Charles Allen, a planning consultant who represents the city's oldest neighborhoods, said judges and legislators should ensure that landowners are fully compensated for existing and prospective financial losses, rather than erode eminent domain powers.

In February, the General Assembly approved legislation that allows judges to order government agencies to pay some court costs for landowners in certain instances. The legislation awaits Gov. Mark Warner's signature.

"It was tremendous progress," said Del. Terrie L. Suit, R-Virginia Beach, who sponsored the two bills, "although it was not everything we wanted."

Virginia was one of six states this year to consider bills that would have prevented governments from taking properties with the intent of giving them to private developers, according to the National Conference of State Legislatures.

The bill was tabled.

Nationwide, more than 10,000 instances of filed or threatened government condemnations for private use occurred between 1998 and 2002, according to a report for the Institute for Justice, a libertarian public interest law firm.

An institute spokesman said the report likely reflected just a fraction of condemnation cases since it relied on news reports and court papers that wouldn't identify all instances.

The report highlights Hampton's efforts to spur the Power Plant and Ottofaro's lawsuit - even though neither the city nor the state Supreme Court characterizes the road as a private use.

In January 2003, the justices called the road an "undisputed" public use owned and controlled by the city, with leftover land going to the city's economic development authority. They did not consider Ottofaro's contention that his property - which the city bought for $170,000 - was taken to help build the Power Plant.

Ottofaro, a 70-year-old retired railroad employee and gas station operator, refuses to accept the ruling. He carries several copies of the institute's report and has frequently blistered Hampton council members in public meetings.

"You think I had a fair trial up there?" he asks. "Heavens no."

Hampton officials expect about 26,000 cars and trucks to travel the road daily in about a decade.

They expect the Power Plant to bring in millions of dollars in tax revenue - money that could pay for firefighters, street repairs and other public services.

The Daily Press: www.dailypress.com

Eminent domain abuse: Bristol (VA) Herald Courier, 3/6/05

Letter to the Editor

By Linda Crosswhite Tate, Abingdon VA

I find it a little ironic that the headlines of the Feb. 25 Bristol Herald Courier told about the delinquent taxes in Washington County and surrounding areas.

It might interest people to know that paying your taxes on time doesn’t mean that you will always be able to keep your property, even though you work hard all your life to provide a home for your family.

The eminent domain law is being abused all over America. The Taylor’s Hill project in Abingdon is a perfect example of how this law is being abused.

According to Webster’s Dictionary, eminent domain means: The right of a government to take private property for public use, just compensation usually given to the owner. The key words are public use.

My mother, Naomi Crosswhite, who is 86 years old, and my brother, Kelly Crosswhite, as well as others who live on Taylor’s Hill, have no problem giving up some of their land for road improvements. The objection is having their land taken to build someone else a house. To us, this clearly is not the meaning of public use.

We also wonder why vacant property, owned by a local real estate agent, isn’t included in this project. There is other property that really needs to be cleaned up where no one is living, so use that.

We all need to attend Abingdon Town Council meetings and find out what is going on in our neighborhoods before it happens to us.

Bristol Herald Courier: www.tricities.com