Eminent domain case near trial: San Luis Obispo CA Tribune News, 12/2/06

By Bob Cuddy

A Templeton man is accusing the county of building a road across his property to benefit a private landowner in what he calls an abuse of the eminent domain process.

Morris Aron, an orthopedic surgeon, wants more money for the property than the county is offering, in addition to monetary damages. The figures fluctuate as the litigation moves forward, but the difference between the two sides could be as much as $3.5 million.

Attorney Todd Amspoker, who is handling the case for the county, called Aron's allegations about abuse of eminent domain "absolutely ridiculous."

Nonetheless, "it rubs me the wrong way that the government can just come in that way" and take land, Aron said.

The local case is playing out against a national backdrop of concern over eminent domain abuse, a discussion triggered by a U.S. Supreme Court decision last year.

Eminent domain allows a government to take private land for the public good, giving the owner fair value. These takings usually are for libraries, schools and roads.

The Supreme Court's decision, in Kelo v. City of New London, Conn., allows local governments to seize property for private development, including hotels and shopping centers. The public benefit would be the tax revenue raised by the development, which in theory would be spent for projects that benefit the entire community.

The Kelo decision triggered a frenzy of local government takings as well as an anti-eminent domain backlash, including Proposition 90 on the Nov. 7 ballot in California, which would have limited land takings. Proposition 90 lost.

Aron's case is scheduled for trial Monday in Superior Court. His attorney, Herman Fitzgerald of Burlingame, said two issues face the court: whether the government has the right to take Aron's land, and how much should it pay.

Aron's 10.6 acres are just off Highway 101 in Templeton. He said he bought the property 10 years ago as an investment but had no immediate plans to develop it. He paid just under $1 million for it.

A few years ago, Aron said, the county decided it needed to run a road through his land connecting Las Tablas Road and Peterson Ranch Road.

"Public interest and necessity require the project," called "the Bennett Way extension project," according to court documents.

The road took about 1.59 acres of Aron's land, slicing it from north to south into two parcels of about 7 acres and 2 acres, curtailing his own potential for development there, Aron said.

He didn't want to put the road through. The county took the land under eminent domain and already has built Bennett Way.

Fitzgerald and Aron said the only reason the county wants the road is to benefit the Peterson Ranch subdivision and its developers.

"The taking confers a private benefit on an identifiable private third party developer," according to court documents.

That is only part of Aron's complaint, however.

The county originally offered him $525,000 for the 1.59 acres based on its perceived market value. It later scaled that back to about $100,000 because the land is zoned for agriculture, and that is its perceived market value under agricultural zoning.

Amspoker says Aron would have been required to put in a road when he developed his property and would have had to dedicate that road to the public.

"If you are subject to a dedication requirement, you don't get paid commercial value for property you would have had to give up anyway," Amspoker said.

"This is a public road," he said, and Aron's claims are "absolutely ridiculous."

Aron insists that he didn't intend to put the road in and the government should not get to just go in and build it.

Should the court rule in Aron's favor, what could he do about his property, with the road already built? It's a good question, Fitzgerald said. "How do you put it back together?"

San Luis Obispo CA Tribune News: http://www.sanluisobispo.com