12/17/2007

Eminent domain discussions raise questions over land owner rights: Amador County CA Ledger-Dispatch, 10/23/07

By Kelly Enos

Recent eminent domain proceedings flying around Amador County - and a particularly controversial case in Plymouth - have some property owners concerned that they could lose what they have worked to keep for years.

"I wasn't really sure what it meant when I first heard the term," said Shenandoah Valley resident Jose Villa, "but with all this going on in Plymouth I started wondering if any city could obtain any property because they wanted to."

Eminent domain, also referred to as "condemnation," is the power of local, state or federal government agencies to take private property for public use as long as the government pays a just compensation. The government can exercise this power even if the property owner does not wish to sell, as outlined in the Fifth Amendment of the Constitution and in article 19, section one of the California Constitution, which uses examples such as schools, roads, libraries, police and fire stations as a guideline for public use.

According to Arthur J. Hazarabedian, an attorney with the California Eminent Domain Law Group, the term "public use" is interpreted very broadly by the courts.

"The project need not be actually open to the public to constitute public use," he said. "Instead, generally only a public benefit is required to the courts and satisfies the public use requirement of federal and state constitutions."

Hazarabedian adds that although government agencies have the power of eminent domain, successful challenges to the government are occasionally made.

"Such challenges, however, are the exception, not the rule. Most usually result in a delay rather than an outright prevention of the governments right to take," he said.

The city of Plymouth has jostled the eminent domain issue from agenda to agenda regarding an easement that is needed to complete a pipeline project that will allow treated water to be brought into the city via the Tanner reservoir.

The properties in question are owned by Ron and Linda Matulich and Russell and Doris Evitt. Although the Matulich family had agreed to the terms of the easement contract, according to the city's legal counsel Shasta Greene, the contract cannot be completed since part of the Evitt property is located on the Matulich side. The matter of the easement and eminent domain proceedings will once again be heard during the city council meeting tomorrow.

Proposition 90 that ran on the 2006 ballot would have banned the use of eminent domain seizures for private developers but was rejected by voters. According to Brian Heaton, a communications specialist with the League of California Cities, an adoption of statutory and constitutional reforms are the strategic focus for the board this year.

"The board voted unanimously to continue supporting its strategy of pursuing eminent domain reform," he said, "both legislatively and in an initiative processes."

The League of California Cities intends to ensure that federal legislation addressing the issue of eminent domain does not impact states such as California.

"California has strong laws that limit the use of eminent domain and have protection for property owners," Heaton said. "We will oppose the federal private property rights implementation act that is being promoted as a response to a recent supreme court ruling since it does not address condemnations, eminent domain or economic development projects in any way."

An June 2008 ballot initiative that will be known as the California Property Owners and Farmland Protection Act would prohibit public agencies from taking private property from one owner to give to another, while preserving the government's right to utilize eminent domain under specified conditions.

In an attempt to contact those who are immediately involved with the proceedings in Plymouth, the Ledger Dispatch was unsuccessful.

Villa plans to attend the meeting in Plymouth to better understand how the city can control property owners in that manner.

"This is of interest to me since I know that the county is planning to develop all around Plymouth and I'm not sure if that will include my land," he said.

He added that if future development begins to infringe on his area, he and his family will relocate.

"We moved here from the Bay Area 13 years go," he said. "We wanted to see open spaces and trees instead of malls and concrete. What a shame that the government can use something like this to turn tables in their favor."


Amador County CA Ledger-Dispatch: http://www.ledger-dispatch.com