9/02/2006

Eminent domain ballot measure could do more harm than good, experts claim: The San Diego CA Daily Transcript, 8/31/06

By Doug Sherwin

The ability of public projects to be built in California could be severely hampered if a proposed ballot measure passes in November, industry experts warned.

In an eminent domain workshop hosted by the San Diego Regional Chamber of Commerce and the San Diego County Bar Association in June, panelists said the measure, dubbed the Anderson Initiative, adversely limits government's ability to acquire property for any project, including schools and roads.

"There will be a thought by some of us about whether or not California is the place to be anymore as a result of the passage of the Anderson Initiative because of its far-reaching implications," said John Shirey, executive director of the California Redevelopment Association.

The measure, which has yet to qualify for the ballot, redefines the amount of "just compensation" for owners whose property is taken as well as redefining the word "damage."

"We can't put a dollar figure on how much more it will cost to do public projects in California as a result of that redefinition," Shirey said, adding it will be significant because "the redefinition doesn't have anything to do with redevelopment. It redefines the cost of acquiring property for all governmental agencies in California for all types of projects -- roads, schools, flood control."

Nancy Graham, president and COO of the Centre City Development Corp., said property owners would then be able to hold out for whatever price they want.

"It's going to have a huge financial impact on trying to do any type of redevelopment because you'll have to end up paying huge amounts of money," she said.

Even property rights advocate Scott Barnett admitted the Anderson Initiative might go too far and doesn't believe that a ballot measure is the best way to affect change.

"We're not against eminent domain," said Barnett, referring to the group ProtectOurProperty.org, of which he's the president. "We know it's an important tool that government needs to have. But we are against the abuses of it and believe that there should be legislation to fix it."

The measure is among a number of proposed remedies in response to the Supreme Court's controversial eminent domain decision last summer.

In the case Kelo v. City of New London (Conn.), the high court voted 5-4 that the city's exercise of eminent domain power in furtherance of its economic development plan satisfied the constitutional "public use" requirement.

The ruling caused a public uproar, fearing the government now had the power to seize any single-family home. Lawmakers in 47 states responded by introducing 325 measures to protect private property. In California alone, 87 bills have been proposed as well as several ballot initiatives.

Shirey blames the media for misreporting the decision with such incendiary headlines as "Supreme Court Rules Cities May Seize Homes" and "Developers Score in Court." He quoted an Associated Press story that read: "Cities now have wide power to bulldoze residences for projects such as shopping malls and hotel complexes in order to generate tax revenue."

Instead of reassuring the electorate that their homes weren't in jeopardy, Shirey said, California's political leaders were "lemmings" and followed the headlines.

"I probably would have argued on the other side if I'd known then what kind of headlines were going to be written," Shirey said.

The California Redevelopment Association is trying to draft an alternative to the Anderson Initiative that would prevent authorities from using eminent domain to take single-family homes for what might be considered economic reasons.

Barnett is concerned that when government is allowed to transfer property from one private party to "basically developers," it gives the development industry unfair political clout because of its ability to make campaign donations.

He wondered out loud at the roundtable if such projects as Petco Park could have been accomplished without the use of eminent domain and went so far as to suggest that CCDC had outlived its usefulness.

"(Redevelopment) is definitely good for business and business downtown, but is it good for city budgets?" he asked.

Graham noted that the San Diego City Council ultimately has the power to disband CCDC and it hasn't seen the need to do so.

San Diego's Bruce Beach, a land-use attorney with Best Best & Krieger, said the appropriate checks and balances to prevent abuses are already in place. "No plan gets approved without going through the City Council or the redevelopment agency," he said. "No property gets condemned without the agency board voting two-thirds to do it. "Nobody is forcing then to acquire a piece of property that they haven't sat down and contemplated as to whether or not to take property by eminent domain."

Shirey said if the Anderson Initiative passes, the California Redevelopment Association likely would consider a post-election challenge to its constitutionality.


The San Diego CA Daily Transcript: http://www.sddt.com