Backing eminent domain: San Bernardino County (CA) Sun, 1/9/06

City pushes to maintain procedure

By Kelly Rayburn

Over the past few years, when [Fontana] city officials here have gone to Sacramento or Washington, D.C., they've gone to ask for help in completing freeway projects, for money to build a library and a teen center, and for relaxation of the rules that protect an endangered fly.

In 2006, add protecting the ability to obtain private land for public projects to that list. Eminent domain, officials here say, is under attack.

And they say that could spell doom for a host of city projects from widening roads and building parks to providing low-income housing.

The concerns officials face have come amid continued backlash from last year's U.S. Supreme Court ruling in the Kelo v. City of New London, Conn., case, which upheld local governments' rights to seize private property and give it to another private party.

Critics charged that the court was rewriting the U.S. Constitution, and, in the wake of the decision, both the federal and state governments considered placing stringent restrictions on eminent domain.

City Manager Ken Hunt said the issue is largely misunderstood by the media and politicians alike.

He argues the decision did little except preserve what cities had been allowed to do for decades.

"(Kelo) was so misrepresented by the media outlets that all these political folks said `ah-hah, there's a hot-button issue,' " he said. "The whole thing has been blown out of proportion."

Hunt said that in his dealings with other city managers in the region, this issue is not yet a major concern. He believes it will be if the state or federal government moves closer to passing major legislation on it.

In California, state Sen. Tom McClintock, R-Thousand Oaks, has been a leading advocate of reforming California's law on eminent domain.

He proposed legislation in 2005 to bar governments from using eminent domain to take property and hand it over to another private party.

The legislation went down on a party-line vote, McClintock said, but he plans to reintroduce it. He's also pursuing the possibility of getting his proposal directly before voters in the form of a ballot measure for the November election.

Asked if he thought it had public support, he said, "overwhelmingly."

"This isn't a question of partisanship or ideology. This is simply right or wrong," McClintock said.

Three other organizations, including the Howard Jarvis Taxpayers Association, are also moving to launch ballot measures curbing eminent domain.

Hunt agrees that there is strong support for curbing eminent domain, calling legislative backing for such measures "huge."

That's what worries him.

Although McClintock's legislation was not designed to eliminate the government's ability to seize land for public projects, Hunt offered an example where, from his point of view, the city's use of eminent domain and subsequent work with a private developer paid public dividends.

When the city was looking to build the first of now three senior-housing complexes in the downtown area, it needed to acquire 23 pieces of property in one square block.

Deputy City Manager David Edgar said the city did not have much trouble obtaining 22 of those properties. There was one holdout.

According to Edgar, an appraiser the city hired put this property owner's triplex at a value of about $175,000. The owner wanted more than $900,000.

The city initiated eminent domain, and, eventually obtained the land before turning it over to private hands to build the senior center.

The complex, the Village at Sierra, opened in 2003.

From Hunt's point of view, the application of eminent domain allowed the city to achieve a number of important city goals for downtown, including getting rid of blight and providing low-income housing.

But it's not only public-private partnerships that have Fontana worried.

Although McClintock's proposal would not bar governments from using eminent domain for strictly government projects, such as roads or parks, Hunt cited the possibility of legislation impeding eminent-domain use against nonprofit organizations such as churches as evidence that such projects could be in danger.

For Janice Rutherford, the Fontana City Council's most vociferous property-rights advocate, it's technicalities like these that make her believe current legislative eminent-domain proposals are misplaced.

Rutherford said she was "very disappointed" with Kelo and went so far to say elected officials need to refocus on property rights and "remember the fundamental principles on which our nation is founded."

But she thinks the remedies offered so far aren't right.

"There are some reforms needed," she said. "I support those reforms. I think the language needs tweaking."

San Bernardino County Sun: www.sbsun.com