Coalition decries eminent domain plan: California Bay Area Daily Review, 9/17/06

Local leaders warn that passage of Prop. 90 would create 'chaos' for residents, city governments

By Matt O'Brien

The passage of [California] Proposition 90 this November would be "chaos" and a "debacle" for East Bay cities, a coalition of worried local leaders agreed at a summit held last week.

The panic was palpable as business advocates, civic administrators and lawyers gathered Thursday at Hayward City Hall. They were deliberating on what to do about a proposition designed to curtail the government's power to make certain laws and take private land.

"Let's not live in 'Alice in Wonderland,'" said Oakland City Attorney John Russo, expressing frustration that the measure has been presented by its proponents as a mythic battle to protect private property from abusive government agencies.

He and other city officials took little solace from Kristine Hart, executive director of the Contra Costa Taxpayers Association, an avid Proposition 90 supporter who acknowledged the measure has some glitches but said the courts would work through them.

"It's not perfect, but it restores to the public the rights they thought they had under the Constitution," Hart said.

The measure, if enacted, would make two major changes in current state law.

It would require local governments, when they make new laws, to pay back property owners who suffer "substantial" economic losses as a result of those new laws.

It would also limit the government's authority to take ownership of private property through the process known as eminent domain.

Dan Muller, a Walnut Creek condemnation lawyer, said he shares concern about the state's eminent domain process, but believes the other provisions in Proposition 90 are unrelated and go far beyond trying to solve that problem.

"It creates potential chaos. It's just not good for probably anybody," Muller said.

Muller said the measure could make cities dangerously liable for many ordinary laws, from zoning changes to housing or consumer protections, if property owners can make a case the ordinance devalues their property in some way.

"No matter how you try to say that cities will likely be able to navigate this proposition if it passes, there will be an outstanding amount of litigation and an outstanding amount of cost," Muller said. "It could be disastrous."

Although most city leaders say they are far more worried about that regulatory provision than they are about a change in eminent domain law, it is eminent domain that continues to galvanize the public.

On Thursday the group met just a block from Atherton Street, the setting several years ago of one of Hayward's fiercest property rights disputes.

The city's Redevelopment Agency, using its eminent domain powers, acquired a downtown auto shop against the owner's wishes because it was sitting on land where city leaders wanted to build high-density condominiums close to the BART station.

"We don't use it that often," said City Manager Jesus Armas. "That was used to assemble a parcel and create what is now a pretty attractive housing complex."

Usually, the city merely threatens to use its eminent domain powers. The last time the Hayward City Council did so, it was against a downtown property owner whose brick building is now the only one left in the city that has not been brought up to modern seismic codes. City officials argued that the building is a public safety hazard, and the owner has since begun work to fix it up.

Local leaders found little consensus on the current eminent domain process after the Thursday summit, yet all but Hart were adamantly opposed to Proposition 90.

Ed Del Beccaro of real estate firm Colliers International hoped the proposition would fail, but gain enough support to force the state Legislature to work out a better solution.

"I hope it gets 49.9 percent," he said. "There is a chord. There is an abuse out there."

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