Poway considers eminent domain ordinance: North County Times, Escondido CA, 6/6/07

By Andrea Moss

The Poway [CA] City Council on Tuesday gave initial approval to an ordinance that describes the city's authority to acquire properties.

The city will almost certainly need that authority, also known as eminent domain, to proceed with a town center project that the council approved in March. On Tuesday, Poway Redevelopment Director Dena Fuentes told the council that the power would remain unchanged by the proposed ordinance, which simply "restates" the existing power in a way that would bring the city in compliance with a state law passed in September.

That law requires redevelopment agencies to adopt ordinances that explain how those agencies can acquire property. The new ordinances must be approved by July 1, under the state law.

Poway's proposed ordinance will come back to the council for a final vote June 12.

The city formed the Paguay Redevelopment Project Area as a way to revitalize sections of Poway that were physically or economically deteriorated. The project area includes 8,200 acres, or roughly half the city, with most of the area centered around Poway and Community roads.

The Poway Redevelopment Agency - actually, the council in a dual role - oversees the project area. And the agency gets its money from a so-called tax increment, or the difference between original and new property tax revenues in the redevelopment area.

Those taxes typically increase as improvement projects within the project area cause property values to go up. The agency can use the increment for similar projects or offer it as an incentive to developers willing to do the same.

Used properly, the approach can greatly improve blighted areas. Aware of that, every city in North County except Encinitas has created at least one redevelopment area.

The idea of government agencies having the power to acquire properties is frightening to some people because it brings to mind cases in which private property was condemned so that a government entity could acquire and incorporate it into projects deemed necessary for the public good. Highways and schools are examples of projects for which forced sales have been carried out in various places around the country.

Fear of eminent domain escalated after the U.S. Supreme Court ruled in 2005 that government agencies could use eminent domain to seize private land and transfer it to private developers to build shopping malls or similar projects.

Poway's existing redevelopment ordinance lists a variety of ways the city can acquire property. Those include buying it, accepting gifts or grants of property, or swapping one site for another.

The city can also work out a cooperative agreement, lease "or any other means authorized by law."

The council decided when it created the redevelopment agency that it would never use eminent domain to buy properties zoned for and developed as residences. The ordinance leaves the door open for Poway to acquire other types of property through condemnation, though.

Fuentes told the council that, since 1991, the city has only done so a couple of times. In both cases, the property involved was environmentally contaminated, and the city used authority given to it under a state act that allows government agencies to seize property, if doing so is necessary to ensure that the contaminants are removed, she said.

That nuance made those cases technically different from any involving the use of eminent domain as defined in the existing and proposed city ordinances, said Fuentes.

Poway's eminent domain power will expire in 2016. A staff report that Fuentes prepared for the council says that if the redevelopment agency wants to acquire any properties between now and then, it will try to work out a "fair market" purchase price with the owners.

North County Times, Escondido CA: http://www.nctimes.com