7/06/2007

Loss of Wolf Creek's (Pre-) Eminent Domain: Yuba Net, Nevada City CA, 6/28/07

Op-Ed

By Terry Lamphier

The Supreme Court ruling on eminent domain a few years ago, vastly expanding its interpretation, created a firestorm of opposition across the nation, including California and, apparently, Grass Valley.

Whether the Supreme Court's action was an act of incredible stupidity or genius is unclear, but the result has been the same: governments are now afraid to have the appearance of 'taking' of property for fear of running afoul of public sentiment and legal entanglements.

The concept of eminent domain has a reasonable basis: as communities grow, they eventually need to secure private land for road systems, bridges, schools, parks and the like. It is important to remember that said land is always appraised and purchased at market value, but becomes a forced sale when private negotiations fail. The historical use of eminent domain has always to been to serve the community at large.

The Supreme Court muddied the waters in expanding eminent domain by arguing that government could bulldoze privately held, multi-generation homes in order to build privately held shopping malls. The Court argued, in essence, that the action served a "greater good", in this case increased tax revenue, by supporting the city's "highest and best use" of the land in question - a decision that outraged conservatives and liberals alike. States across the nation have since been racing to pass new laws seeking to prevent, or at least narrow such a broad and egregious use of eminent domain.

With all this, it is important to remember that it is still illegal for government to "take" property for the public good without just compensation. Property rights advocates misrepresent this issue to the point that cautious governments, including Grass Valley's, fear having even the slightest appearance of directing private property owners land usage.

Grass Valley's City Council has shown itself incapable of understanding these distinctions, as illustrated recently in a seemingly small matter of securing a creek public trail easement from a local businessman.

The issue, seeking a few feet of right of way for a future public path along Wolf Creek, outraged the property owner to the point of bringing in an attorney to argue with Council. The City's initial position was that the property owner should give an easement for the trail, arguing that the property owner's business would negatively impact public traffic circulation. The trail system, offering 'alternative' transportation, would mitigate those perceived harms. The attorney countered that the nexus (connection) was too tenuous and therefore not justifiable, and further, that if the City were to continue such a line of reasoning a court would support the property owner's argument of an illegal taking without just compensation.

Council not only declined to pursue the arguably supportable nexus issue but also went way overboard in the other direction and granted the owner his original request with no restrictions for a trail system. Council chose not to pursue a highly justifiable classic eminent domain argument, whereby an independent appraiser establishes a value for the trail easement and requires the landowner to grant the easement, in exchange for just compensation.

The Wolf Creek parkway project is a sad example of government missing a chance to fight for the community by failing to pursue actions which would permanently assure that this special asset is made available to all.

On the opposite end of the local spectrum is the issue of using eminent domain to benefit large private landowners wanting to build huge housing developments. The large projects will have significant impacts on local traffic circulation. Developer's solutions to date involve new and/or modified freeway interchanges (taxpayer funded), requiring purchase of existing privately held homes and property.

Should private negotiations fail, the City will face using eminent domain to force sale of homes so that road improvements can be done to benefit these developers. The argument appears to fit the Supreme Court ruling, as there is the theoretical argument that such large developments may provide increased tax revenue, but this use of eminent domain is what has caused the backlash across the nation.

If Grass Valley city leaders and legal advisors can't understand these distinctions, it is time for Council to seek new counsel.


Yuba Net, Nevada City CA: http://www.yubanet.com

Terry Lamphier is a Grass Valley resident and former member of the Grass Valley Planning Commission