The Spector of Eminent Domain is an Eminent Threat: Gilroy CA Dispatch, 8/22/06


By Lisa Pampuch

Now that South County's only Albertson's grocery store, located in Morgan Hill Plaza, has closed, some people are urging City Council to condemn the strip mall on 7.5 acres at the southwest corner of Dunne Avenue and Monterey Road.

It's an eyesore, they say.

It's a drag on the local economy, they insist.

It's hurting downtown Morgan Hill, they claim.

It has seven owners, making it difficult to come up with a plan to rejuvenate the site that everyone can agree upon, they cry.

What it really comes down to is that the owners of Morgan Hill Plaza aren't using their private property the way some people would like them to use it.

They're not doing anything illegal or violating any zoning ordinance. The strip mall just isn't as pretty or as upscale as some people think it ought to be.

Because Morgan Hill has a redevelopment agency that has renounced its eminent domain powers, city officials are now considering granting themselves those powers when they extend the RDA.

"We are thinking about when we extend the redevelopment agency, we'll grant eminent domain for obviously blighted parcels," City Councilman and mayoral candidate Steve Tate told reporter Tony Burchyns recently.

While I could write a column or two on whether or not the city should extend its RDA (and have done so in the past), I'll limit myself in this column to eminent domain.

Eminent domain should be used only in cases where a property is the only suitable site for a government project or facility.

Unless the city determines that Morgan Hill Plaza is the only suitable location for some government project - a fire station, a police station, a library, a road - it should not condemn private property.

In the case of Morgan Hill Plaza, there's no talk of a government facility for the site - far from it.

"We might have to purchase the land and turn it over to another developer," Jim Dumas, project manager for the city's Department of Business Assistance and Housing Services (that's really the city's RDA department; I've always wondered why they used such an obfuscating name for it), told Burchyns.

But at least one Morgan Hill Plaza owner doesn't want to sell.

"We've been there 30 years. We'd prefer to be here another 30 years," Tom Wilson of Duckett-Wilson, which owns most of the property, said. "We'll continue to maintain the plaza, keep it clean and neat … "

Unfortunately, we have to rely on the city to restrain itself, after a lamentable decision last year by the United States Supreme Court in the case of Kelo v. New London. Homeowners sued when the city of New London, Conn., attempted to force them to sell their properties so it could revitalize a neighborhood with a pharmaceutical research facility, other commercial facilities, and residential development.

In that case, the justices ruled 5-4 that governmental agencies can force the sale of private property (like your home or shopping center) on behalf of other private entities (like a developer that wants to build a factory or fancier homes).

"Promoting economic development is a traditional and long-accepted function of government," Justice John Paul Stevens wrote for the majority.

And Stevens was correct in that assertion. In Canton, Miss., homes were condemned to make way for an automobile factory, and in New York City, eminent domain was used to facilitate the development of the World Trade Center.

But just because it has been done in the past doesn't make it right.

After Kelo, all it takes to legally justify eminent domain is an argument that doing so promotes the public good.

The problem is that "public good" is a subjective measure that cannot be equitably applied and about which reasonable people can reasonably disagree.

One person might believe that increased tax revenue from a proposed factory will benefit a community, but another might argue that the plant's pollution, noise and traffic outweigh those benefits.

Who's right?

One person might argue that a casino will bring jobs, ancillary businesses and tourists, but another might argue that gambling will harm the community's moral fiber and believe that outweighs economic benefits.

Who's right?

While I'd love to see Morgan Hill Plaza beautified and filled with exciting retailers, and while I suspect that would benefit downtown and the city as a whole, I have no doubt that using eminent domain to achieve it will damage our already precarious private property rights.

That's too high a price to pay.

No eminent domain for private development.

Gilroy CA Dispatch: http://www.gilroydispatch.com