Recent Developments In The Right To Take

The issue of the right to condemn has been increasingly the subject of judicial attention. Courts have been both strict and loose in their interpretation of the power, particularly where the concept of "public use" is involved. Indeed, the issue has hit such a boil that it will be the subject of a U.S. Supreme Court decision by the end of June 2005.

Bye, Bye Poletown; Hello Kelo
No deity or graffiti artist ever wrote more clearly on a wall. The Michigan Supreme Court plainly telegraphed that it had granted discretionary review of a recent appellate decision in order to reverse a controversial, 23-year old decision of its own. The decision in Poletown Neighborhood Council v. Detroit, 304 N.W.2d 455 (Mich. 1981) had allowed government agencies to condemn private property for the sole purpose of handing it over to a private business for a different use. In plain English, economic development would suffice to satisfy the constitutional requirement that the power of eminent domain be used only to convert land from private use to public use—even when the new use was not even nominally "public."

Poletown destroyed 1200 households, 16 churches, more than 100 businesses, a U.S. post office, and a 278-bed hospital. (See Armond Cohen, Poletown, Detroit: A Case Study in "Public Use" and Reindustrialization [Lincoln Inst. of Land Policy 1982].) The reason? General Motors wanted to build a new Cadillac assembly plant and threatened to build it in another state—leaving "Motor City" without one of its signature industrial sites. Detroit eventually spent some $200 million assembling and razing the site, and then sold it to GM for $6.5 million. For this, GM promised 6000 new jobs. Reality is that no more than 3000 ever materialized. But Poletown—along with its structures of both historical and architectural significance—is now history.

The order granting review in the current consolidated eminent domain cases directed the parties to "include among the issues to be briefed" (a none too subtle invitation to forget other issues and focus here), first, whether the government had the authority to condemn the properties in issue; second, whether taking private property to turn over to other private parties was for a "public purpose" under Poletown; third, whether Poletown is consistent with the Constitution and—if not—whether it should be overruled; and finally, whether a decision overruling Poletown should be retroactive. (County of Wayne v. Hathcock, et al., consolidated Mich. Supreme Court case numbers 124070-78 [Order entered Nov. 17, 2003].)

While agreeing that they ought to review these cases, two of the Justices expressed discomfort that the rest of the Court had provided a roadmap for overruling the earlier Poletown decision.

Hathcock's facts were similar to Poletown's—but bigger. Where the Poletown site was 465 acres (partially within a neighboring community), Hathcock was part of a 1,300-acre project. (The condemnations involved the last few hundred acres.) The project was expected to generate some 30,000 jobs and $350 million in tax revenue. The lower courts found the case legally indistinguishable from Poletown, and approved the forced acquisition.

That's when the Michigan Supreme Court put its judicial foot down. Unanimously. Although two Justices disagreed with the majority's conclusion to apply its decision retroactively, no one disagreed that Poletown had to go.

The focal point of the case, said the majority opinion, was "a clash of two bedrock principles of our legal tradition: the sacrosanct right of individuals to dominion over their private property, on the one hand and, on the other, the state's authority to condemn private property for the commonwealth."

No one questioned that the proposed development would be a good economic idea. That, however, was not the constitutional issue. Eminent domain has been called the state's "most awesome grant of power" to municipalities because it enables them to compel private citizens to sell property that they may not wish to sell, at a time of someone else's choosing, and on terms set either by the buyer or by a court. (See City of Oakland v. Oakland Raiders, 174 Cal.App.3d 414, 419 [1985]; Winger v. Aires, 89 A.2d 521, 522 [Pa. 1952].)

Concededly, the idea of "public use" has blurred from the obvious original intent that eminent domain be used to acquire property solely for public works like government offices, schools, highways and the like. In its first look at urban redevelopment laws, the U.S. Supreme Court agreed that eliminating "blight" was a sufficient public use to invoke this power. (Berman v. Parker, 348 U.S. 26 [1954].) And the California Supreme Court, under rather unique circumstances, found nothing amiss in using the power to condemn a football team to play in the public stadium built for it years earlier. (City of Oakland v. Oakland Raiders, 32 Cal.3d 60 [1982].)

But the idea of taking property that is not otherwise blighted or infirm, simply to allow different citizens to use it has not been universally cheered. A California court, for example, recently overturned a scam to designate much of the resort town of Mammoth Lakes as "blighted," so it could be "redeveloped"—using condemnation power where necessary—into a more profitable recreational community. (Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency, 82 Cal.App.4th 511 [2000].)

The Illinois Supreme Court likewise ended a scheme in which a local development authority openly advertised that it would use its power of eminent domain to acquire property when a prospective developer was unable to buy all the land needed for the project. Refusing to allow government agencies "to act as a default broker of land . . . ," the court held the practice unconstitutional. (Southwestern Illinois Development Auth. v. National City Environmental, 768 N.E.2d 1 [Ill. 2002].)

Thus, Poletown's conclusion that, because "generalized economic benefit" was in the public interest, acquisition of private property to transfer title to someone who promised to make a "better" economic use was the same as a "public use," could not pass constitutional muster. It had been, said the court, "a radical and unabashed departure from the entirety of this Court's . . . eminent domain jurisprudence." Consequently, "we must overrule Poletown in order to vindicate our Constitution, protect the people's property rights, and preserve the legitimacy of the judicial branch as the expositor—not creator—of fundamental law."
This is a terribly controversial legal area. Detroit was not alone in its expansive use of condemnation in aid of commercial development. Yonkers, New York, for example, used its power to condemn land to accommodate expansion plans of the Otis Elevator Company. (Yonkers Redevelopment Agency v. Morris, 335 N.E.2d 327 [N.Y. 1975].) A few years later, Otis Elevator changed its mind, left town anyway, and left the city holding a very empty bag. (City of Yonkers v. Otis Elevator Co., 844 F.2d 42 [2d Cir. 1988].)

The issue is ripe for coherence. Earlier this year, the Connecticut Supreme Court examined the same issue as Michigan and, by a 4-3 vote, reached the opposite conclusion. (Kelo v. City of New London, 843 A.2d 500 [Conn. 2004], cert. granted, U.S. Supreme Court Case No. 04-108.) There, the City of New London concluded that replacing a working class residential and commercial area with 90 acres of industrial park and office space would be better for the city's economic prospects. The project is expected to generate 700 to 1300 new permanent jobs, in addition to construction jobs and indirect employment away from the building site. Property tax revenues are projected at a million dollars, plus or minus. On the other side of the ledger, after displacing the current residents, and paying the court ordered compensation, the city will lease it to the redeveloper for 99 years at a rental of $1 per year.

It is time for the U.S. Supreme Court to revisit this area. Enough different state views of the concept of "public use" have appeared that the High Court needs to speak again. It is unseemly—to say nothing of unjust—for citizens in Connecticut to be judged by a different standard than those in Michigan when the fundamental issue is the same.

We should have an answer before this Institute meets again.

Gorilla Warfare
When a "Big Box" Store Tells a Municipality to "Jump," Should It?

You just can't pretend that an 800-pound gorilla isn't there. Whistling doesn't help; neither does looking the other way. The earth still shakes when it stalks the night.

That is reportedly what it feels like in some municipalities when the big box stores (the ones with all the architectural style of a large packing crate surrounded by acres of sterile concrete parking lots) come calling. The City of Lancaster in northern Los Angeles County had one. It was called Costco and it anchored a shopping center that Lancaster called its "power center" and touted on its web site as the crowning achievement of its redevelopment program.

Costco, for the uninitiated, is a membership store that sells products in bulk at lower prices than ordinary retail stores. A few years ago, Costco got a neighbor in the Lancaster center, a no-frills, low cost retailer called 99¢ Only Stores. It did substantial business, and the city said it was delighted with the tax revenues it produced.

But Costco had a different idea. For reasons of its own (perhaps it didn't like a low cost retailer doing well next door), Costco told Lancaster that it needed to expand its store, and the only place that would work was the space being occupied by 99¢ Only. The city initially tried to persuade Costco to expand in a different direction (several alternatives were available), but Costco was adamant. It asked Lancaster to condemn the interest of 99¢ Only and make the space available for Costco's expansion.

Eight hundred-pound gorillas don't generally need to do more than ask. That's the fun of being an 800-pound gorilla. Just to make sure that the city understood the seriousness of the situation, however, Costco reportedly told city staff that it would close its store and do two things that would surely be anathema to Lancaster. First, it would move to Lancaster's arch-rival, Palmdale, taking its taxes and customers with it. Second, it would leave the Lancaster store shuttered and unoccupied, refusing to rent it to anyone else, thus demonstrating the foolhardiness of failing to understand the message.

City staff duly reported the precarious situation to the City Council and the Lancaster Redevelopment Agency (as in many cities, the City Council and the Agency's Board consist of the same people), openly referring to Costco as the city's 800-pound gorilla. The city council dutifully adopted resolutions declaring the necessity of condemning the 99¢ Only Store so the site could be sold to Costco. Curiously, as the condemnation would be pursuant to the State's Community Redevelopment Law, the resolutions made no finding that the site to be condemned or the shopping center, or anything else was blighted, merely that the city needed the property. The plan was to relocate the 99¢ Only Store and acquire the site from its landlord for $3.8 million. The re-sale price to Costco was going to be $1.

Things had gone smoothly for Costco and Lancaster to that point, but then it all hit the fan. Before Lancaster could follow up its resolution with a condemnation complaint in superior court, 99¢ Only filed its own suit in U.S. District Court, seeking to enjoin the condemnation. Why? Because both federal and state constitutions restrict the use of eminent domain to taking private property for public use—and this taking reeked of a purely private use. (U.S. Const., 5th Amend.; Cal. Const., Art. I, § 19.)

At pre-trial hearings, it became apparent that the trial judge was skeptical about Lancaster's actions. In any event, shortly before the case was set to go to trial, Lancaster rescinded its condemnation resolutions and tried to convince the judge that the case had become moot.

Beyond that, Lancaster said it had located an alternative site for Costco and had cancelled any agreement it had with Costco to expand its existing site.

But Lancaster would not commit itself legally. What, asked counsel for 99¢ Only and the trial judge almost in unison, if the case is dismissed? Will the city agree not to immediately adopt new resolutions and proceed again to condemn the site to mollify Costco? No, said the city's lawyer, the city couldn't formally agree to that, but he was sure it wouldn't happen.

Not good enough. By that time, the court had a track record spread before it about the city acceding to Costco's desires, even to the point of adopting condemnation resolutions that failed to pass constitutional muster. Without a binding agreement not to resume course once the case was dismissed, the court held the matter was not moot. As the trial court put it, "throughout the course of this litigation, Lancaster has persistently refused to enter into any stipulation agreeing not to condemn 99 Cents' leasehold interest at Costco's behest." (99¢ Only Stores, Inc. v. City of Lancaster, 237 F. Supp. 2d 1123 [C.D. Cal. 2001].)

In this, he was on solid ground. Where the supposed mootness is brought about by a voluntary action that can be as quickly undone, the case is not moot. (E.g., Friends of the Earth v. Laidlaw Envt'l Services, 120 S.Ct. 693 [2000].) Particularly where, as here, the resolutions appear to have been rescinded in response to a lawsuit. (Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851 [9th Cir. 1985].) The burden of demonstrating mootness is on the defendant, and it is heavy. (County of Los Angeles v. Davis, 440 U.S. 625 [1979].) The trial court's suspicions were aroused by the city's simultaneous argument that it had no intention to condemn the site for Costco, but that it could if it wanted to. In the court's words, "Lancaster's naked assertion that it has no plans to initiate eminent domain proceedings against 99 Cents for the sole benefit of Costco is made suspect by the fact that it continues to insist it is within its absolute right to do so."

That being said, the court proceeded to the merits. It wasted little time in concluding that no public use had been established. There was no blight. Not on the site sought to be condemned nor anywhere in the vicinity. The best the city could argue was that if Costco followed through on its threat to board up the store and leave it dark, then the Costco site would become blighted sometime in the future. But there is no provision in the law to condemn perfectly sound property today to remedy the hint of a possibility of blight in the future.

The case in fact presented the worst-case scenario hypothesized by the Court of Appeals in Armendariz v. Penman, 75 F.3d 1311, 1321 (9th Cir. 1996) (en banc): "If officials could take private property, even with adequate compensation, simply be deciding behind closed doors that some other use of the property would be a 'public use', and if those officials could later justify their decision in court by merely positing 'a conceivable public purpose' to which the taking is rationally related, the 'public use' provision of the Takings Clause would lose all power to restrain government takings."

The U.S. Supreme Court put it bluntly, even as it approved a revolutionary land reform program in Hawaii: "A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void." (Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 245 [1984].) Just so. And Lancaster's plan served no conceivable purpose other than Costco's.

The court issued a narrow injunction that should not have been a problem for Lancaster. That is, it should not have been a problem if Lancaster meant it when it said it had no intention of condemning this site for Costco in the future. All the court did was to enjoin precisely that action for that purpose.

Lancaster appealed anyway. On appeal, Lancaster continued its ploy of arguing that the matter was moot because it had located an alternate site for Costco and the threatened condemnation could not occur in the future. The trick was too cute by half. All Lancaster succeeded in doing was demonstrating that its own appeal was moot.

The Court of Appeals affirmed the trial court's conclusions that the matter was not moot at the time the trial court acted. Lancaster's "voluntary" rescission of the condemnation resolutions on the eve of trial, while retaining the right to reenact the same resolutions at a later date, could not moot the controversy. However, taking Lancaster at its word that it was moving Costco to a different location, thus eliminating any threat to the 99¢ Only Store, the appellate court felt it had no alternative but to dismiss the city's appeal as moot because at this stage there seemed to be no controversy left. (99 Cents Only Stores v. Lancaster Redevelopment Agency, 60 Fed. Apdx. 123, 2003 WL 932421 [9th Cir. 2003].)

Eight hundred-pound gorillas can be tough to deal with, but sometimes it is best to just tell them to pipe down and eat their bananas.

Double Cross
Would You Rather Have A Church Or A Costco?

It's been a while since the maxim about rendering different things unto Caesar and God was first voiced, but church and state seem to be duking it out on an increasing basis these days. A current chapter erupted in the Orange County, California, community of Cypress, where the city says it will condemn eighteen acres of vacant land that a church planned to use for a large new facility so that it could, instead, move another giant Costco outlet onto the property.

From a municipality's vantage point (except for some of those quaint New England townships that want to retain their historic flavor), big boxes rule. They bring lots of customers who spend lots of money and generate lots of tax revenue. They bring traffic too, but that is seen as a trade-off, with the municipality happily supplying the infrastructure in exchange for the ratable. Churches also generate traffic, but no local revenue.

Thus, for a city, it's a no-brainer. Given a choice, you make a home for the commercial outfit and tell the churchmice to pack it in. Which is exactly what Cypress announced it would do. If the church won't voluntarily sell its land, then the city will invoke its power of eminent domain and condemn the property.

This may prove to be an interesting fight. On the one side are the city and Costco. On the other is the Cottonwood Christian Center. If not Goliath, Cottonwood may be something more than little David, as well. The congregation long ago outgrew the small, 700 seat facility it now occupies. Every weekend, 4000 parishioners attend six services at the facility. Hundreds—sometimes thousands—are turned away. The weekend after 9/11, an extra 2000 showed up.

And Congress has sided with the congregation. It adopted the Religious Land Use and Institutionalized Persons Act (RLUIPA), overtly designed to even the land use playing field a bit by reining in the power of local regulatory agencies. RLUIPA prohibits local regulators from acting in such a way as to place a "substantial burden" on the practice of religion. Count on the Cottonwood Christian Center trying to convince a judge at some point that forcing it off land (for which it recently paid $14 million) that it bought to construct proper facilities to care for its flock places a "substantial burden" on its ability to spread the religious word.

Municipal planners, headed by the American Planning Association (their national mouthpiece), hate RLUIPA. The reason is obvious: it trims their wings by making houses of worship somewhat more equal than other landowners. Because of that "substantial burden" caveat, planners are less free to deal with religious institutions than with the rest of the citizenry.

Beyond RLUIPA, there's the question of the propriety of local government using the power of eminent domain solely for the purpose of taking land away from one private citizen to give it to another. There is, of course, nothing inherently wrong with wanting to build a house of worship and related facilities for the care, education, and feeding of members and their children. Indeed, through RLUIPA, Congress has plainly indicated that it believes such facilities are entitled to some measure of protection.

Nor is there anything inherently wrong with a commercial, job-enhancing, tax-producing facility either. The question is whether the government ought to be in the business of ousting one so it can insert the other.

"Public use" may no longer mean that large numbers of the general public actually have to make physical use of property being condemned, but it still means more than public desire, public wish, or public whim. Cypress decided that it would like to use the State's Community Redevelopment Law—powered by the engine of eminent domain—to convert an unused parcel (the one that Cottonwood bought and wants to improve) into a big box shopping development. The question is whether that is a sufficiently "public use" to satisfy the constitution.

Entities like Cypress like to argue that the public use is the elimination of blight, and that the transfer of the property to a private party like Costco is merely incidental to that public use. However, the only thing that seems to be wrong with this site is that it isn't being used. It is a large parcel of vacant land. It doesn't appear to be "blighted" in any ordinary sense of the word. Moreover, it has been purchased by a party that has definite plans for its use, and that use will redevelop the entire parcel.

Thus, what's really afoot is the city's preference for a tax generating store rather than a house of worship. Should the city be able to make that call? The California Supreme Court seemed to answer this in the negative a quarter century ago: "One man's land cannot be seized by the Government and sold to another man merely in order that the purchaser may build upon it a better house or a house which better meets the Government's idea of what is appropriate or well designed. . . . [The powers of redevelopment and eminent domain] never can be used just because the public agency considers that it can make a better use or planning of an area than its present use or plan." (Sweetwater Civic Ass'n v. City of National City, 18 Cal.3d 270, 278 [1976]; quoting with approval.)
Since then, other courts have added their own cautionary statements, even to the point of setting aside redevelopment projects and refusing to permit condemnations to proceed where the object was plainly a political power play designed to transfer title to real estate from a disfavored constituent to a more favored one. (E.g., Regus v. City of Baldwin Park, 70 Cal.App.3d 968 [1977]; Beach-Courchesne v. City of Diamond Bar, 80 Cal.App.4th 388 [2000]; Friends of Mammoth v. Town of Mammoth Lakes Redev. Agency, 82 Cal.App.4th 511 [2000].)

Dealing directly with the question of cities making financially-based planning decisions, the Court of Appeal in Beach-Courchesne concluded that the redevelopment law "is not simply a vehicle for cash-strapped municipalities to finance community improvements." That merely up-dated the court's comments twenty-five years ago in Regus that it is an abuse of the redevelopment laws to condemn property and use tax revenues simply as subsidies to attract major new businesses (which will, after all, locate somewhere in the vicinity, but perhaps in a neighboring community).

In Cypress, the separation of church and state appears to have devolved into the kind of separation that the trenches provided in World War I—and the parties seem destined to fight a war that has at least two front lines. It's too bad that the courts are again called on to tell our municipalities that there are limits to the way they treat their citizens. The message has been given before. Some people seem to need a refresher.

When it went to court, the church won. (Cottonwood Christian Center v. Cypress Redev. Agency, 218 F. Supp. 2d 1203 [C.D. Cal. 2002].) The court relied on both RLUIPA and the analysis in 99 ¢ Only to justify summary judgment for the church.

Hands Off!
Not All Government Land Grabs Are Constitutional

"Farmers near Mexico City guard their land with machetes in an effort to keep it from being seized for construction of an airport." (Caption on a front page photograph in the Los Angeles Times, July 13, 2002.)

They do things differently south of the border. The story behind the rather frightening photographs coming out of an area east of Mexico City was simply that the government had decided to acquire 13,300 acres of land for a new airport. While the officials apparently managed to mollify environmentalists (who feared the loss of a dry lakebed used as a winter home by migratory birds), the farmers who owned the land were another story altogether. (Richard Boudreaux & Rafael Aguirre, "Standoff Over Land Continues in Mexico, Los Angeles Times, July 13, 2002, p. A5.) They were aggrieved—strongly so.

Families comprising some 34,000 people own the land that sprawls across thirteen Mexican communities. All of them will have to go so that Mexico City can have a new airport—the largest in Latin America.
It's not that the Mexican government failed to offer compensation for the land. It did. According to press reports, it offered 7 pesos per square meter of land (roughly 8 cents per square foot). Not enough, according to the owners. Here, the action would have taken place in court. There, however, both sides took hostages.

The underlying story is really rather common, one shared by thousands of Americans—particularly those who own land or live in areas slated for "redevelopment." Large government projects require large blocks of land. Whether for a new airport (acquisitions in Palmdale, California, for what was originally dubbed an "intercontinental" airport lasted for years), or a new sports center (the Staples Center in Los Angeles displaced numerous individuals and businesses), or any of the ubiquitous shopping malls that have sprouted throughout the land, the engine of change is the government's power of eminent domain, the power to compel private citizens to sell their land.

There's a lesson in the Mexican story that shouldn't be lost on American authorities. The message is not that Americans are going to start rioting and taking hostages to protest government land acquisitions, although some have come close in the past. Rather, the point is that acquisitions that displace large neighborhoods and disrupt family and commercial patterns tend to rouse deep emotional responses.

It's not just about money. Sometimes it's about the proposed "public" project. Most people can understand when their homes or businesses need to be taken for a new fire station, or hospital, or city hall, or the like. Emotions tend to run a bit hotter when their land is simply being taken in order to turn it over to some private business so it can make money.

And that is happening with greater frequency. The problem had its genesis with the U.S. Supreme Court. Half a century ago, the Court approved the concept of slum clearance (now called urban redevelopment) in the landmark case of Berman v. Parker, 348 U.S. 26 (1954). There, the Court held that it didn't matter that one particular building in the slum clearance area was not dilapidated if consolidation of ownerships was necessary to achieve the planners' goals. The owner's constitutional rights were satisfied upon receipt of just compensation for the property taken. The fact that the land wouldn't actually be "used" by the public, or for a genuinely public purpose, didn't mean that it wasn't being taken "for public use" (as required by the 5th Amendment) because the "public use" was slum clearance, and what happened to it after the taking was none of the condemnee's business.

That theme was amplified 30 years later in Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984), a strange case from the Sandwich Isles. Most land in Hawaii that wasn't owned by a government agency was owned by one of a handful of powerful estates. Those who lived or worked on the surface of that land leased it from the owners. The legislature decided to break up this land oligopoly by permitting the State to condemn the land title and convey it to the tenants. Again there was no actual use by the public, but the High Court concluded that establishing a system of land tenure consonant with the rest of the country was public use enough.

The sweep of these opinions emboldened public agencies—and their friends. They thought this broad interpretation of the concept of "public use" granted them virtual carte blanche to redistribute land titles. Some redevelopment projects made little pretense of clearing slums (or even, in its more refined version, eliminating blight). They simply made use of the government's power to compel land sales to consolidate large blocks of property for development. Profits soared for the new owners and redevelopment agencies benefited from increased tax revenues.

Landowners continued to protest such actions, however, and courts have begun to look with a jaundiced eye at some of the more outrageous attempts to loan the government's awesome power of eminent domain to politically connected individuals. There seems to be hope for the future.

New Jersey has been a hotbed of condemnations for private use, and an equally hot area for protests. In one case, matters got so heated when Atlantic City wanted to eliminate homes to improve the access to its casinos that Time Magazine editorialized that the government "stands prepared to wield the power of eminent domain, a legal term meaning 'we can do anything we want.' " (Steve Lopez, "In the Name of Her Father, Time Magazine, July 14, 1997, p. 4.)

The popular notion that eminent domain means "we can do anything we want" is the public perception that condemning authorities want people to have. They prefer it if people do not exercise their right to protest, but simply take what is being offered for their land and go away. But it's not working. Not even in New Jersey. Shortly after that Time Magazine commentary, a trial court stopped Donald Trump in his tracks. The Donald, as he prefers to be called, wanted to condemn land near his Trump Plaza Hotel to build a driveway and parking area for limousines used by the casino's high rollers. Or maybe something else. The arrangement Trump worked out with the local redevelopment authority required him to use it for a parking lot only "for a reasonable period of time." After that, he could do with it as he pleased. The court balked. By no stretch of the imagination would that be a public use (or even in the public interest), and the taking was not allowed. (Casino Redevelopment Auth. v. Banin, ATL-L-2676-94.)

The moral here is that those who wield the power of eminent domain need to exercise it with care. Time Magazine notwithstanding, the phrase doesn't mean carte blanche. The protesters don't always win, but courts are finally catching on to the game that was played for too long in the shadow of the Supreme Court's expansive language in Berman. There are limits. And they are starting to be enforced. We haven't yet reached the level of rage exhibited recently in Mexico, but feelings about land ownership run deep. They are discounted at the cities' peril.

A Question of Time
Death Results From Eminent Domain Dispute.

It was bound to happen; it was only a question of when and where violence would erupt in response to some forced governmental taking of private property. Government agencies at all levels have become blasé about their use of the power of eminent domain, the power to force private property owners to sell their land to the government at a time of the government's choosing, regardless of the citizen's wants, needs, or circumstances. These days, it seems to be invoked at the drop of a bureaucrat's hat to ease the way for some pet project.

There are a lot of citizens who are offended by the widespread employment of this power—and not all of them are completely rational about it.

Things came to a head in Abbeville County, South Carolina, when a family protested widening a highway by moving it 15 feet closer to their home. They claimed the state had illegally acquired that strip of their land from a previous owner. They started by writing to the State Department of Transportation to express their outrage; then they let local highway workers know of their unhappiness; and then they opened fire on sheriff's deputies who came to quiet the situation. Two deputies died in the ensuing firefight. (Jeffrey Collins, " 'Live Free or Die' Motto Invoked in Killing of S.C. Officers," The Manchester Union Leader, p. A1 [Dec. 11, 2003]; April M. Silvaggio, "SLED Alleges Slaying Plot," The Greenville News, p. 17A [Dec. 10, 2003].)

The family, although resident in South Carolina for years, had come from New Hampshire, whose motto—emblazoned on its license plates—is "Live Free or Die." Said the primary shooter afterward, explaining his opposition to the state taking his land for a highway, "If we can't be any freer than that in this country, I'd rather die." Unmentioned, of course, went the fact that he didn't shoot himself, he offed two deputies.

Is that a common reaction to condemnation? No. Is it likely to become a common practice? Hardly. But before this, such events were generally limited to foreign countries, and Americans could cluck about over-reactions in the Third World.

That such an event could happen in the United States should be a wake-up call. It ought to serve as a worthwhile warning to government agencies that there may be something amiss in their acquisition procedures. If they were doctors, one might suggest that their bedside manner was flawed.

Consider a classic example from Minnesota. Addressing a large group of property owners whose land was targeted for park acquisition by the federal government, the land acquisition officer made no bones about his intent to obtain their land at bargain basement prices, and put them through a financially ruinous process if they refused, by dragging things out for years:

"My job is to acquire this land for the National Park Service. I hope to acquire it for about 30 [cents] on the dollar. If the landowners cannot accept our reasonable offers, we let the matter ride for a few years. Then if necessary, we go to Court, including trials and appeals. This procedure is very expensive for the landowners. If we cannot agree on our terms, the landowners can hire lawyers at one-third and pay the court costs in addition. All of this takes some several years." (U.S. v. 341.45 Acres of Land, 751 F.2d 924, 927 [8th Cir. 1984].)

This kind of thing goes on despite repeated admonitions from the courts. Thirty cents on the dollar apparently seemed "reasonable" to the National Park Service's agent, notwithstanding this kind of clarity from the Supreme Court: "The political ethics reflected in the Fifth Amendment reject confiscation as a measure of justice." (U.S. v. Cors, 337 U.S. 325, 332 [1949].) As Justice Holmes put it long ago, "The protection of private property in the 5th Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation." (Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 [1922].) Merely "want[ing] it very much," as Holmes put it, is not enough to legitimize governmental theft.

For those who think that doesn't happen today, or at least not in California, consider People ex rel. Dept. of Transportation v. Southern California Edison Co., 22 Cal.4th 791 (2000). There, CalTrans condemned a 5-mile swath along an Edison transmission corridor in order to extend the San Gabriel Valley Freeway. The amount deposited in court by CalTrans as its estimate of "the probable amount of compensation . . . that will be awarded in the proceeding" (see Code Civ. Proc. § 1255.010) was $234,485. At trial, CalTrans' own appraiser testified that the compensation should be $4,697,000, thus setting the floor some 20 times higher than CalTrans' pretrial estimate of "probable" compensation. The jury returned a verdict of $49,500,000.

Extreme? Sure. How on earth could CalTrans officials ask their messenger to walk innocently into court with a straight face and hand the clerk a check for $234,485 as the probable amount of compensation that would be awarded, when its own experience should have told it the number was too low? And what did its officials think when their own appraiser later told them their deposit was off by a factor of 20? Never mind what happened when the jury told them this was not a $200,000 case, or even a $4 1/2 million dollar case, but a $50,000,000 case—more than 200 times that estimate of "probable" compensation. Has the word "probable" lost all meaning?

Isolated? Unfortunately not. Too many government agencies try to balance their budgets on the backs of faultless property owners who are simply unlucky enough to own the wrong land at the wrong time, i.e., when and where government wants to press it into service.

And it's not just for classic "public works" of a kind that most people accept as necessary government facilities—things like roads and post offices and libraries and even prisons (as long as the latter are built in someone else's back yard). Next time you go to the local shopping mall, you are probably walking through an eminent domain project. Our large southern California malls have largely been developed on land assembled by redevelopment agencies exercising the power of eminent domain to take land from its existing owners, package it, and transfer it to the "redevelopers." The same is true of your next outing to see the Los Angeles Lakers, Clippers, or Kings. The Staples Center was a redevelopment project. The same is true of similar projects elsewhere in the country.

Is Southern California Edison likely to take up arms against CalTrans? Even at the depths of its recent financial woes, one finds that unlikely, but some individuals—as the events in Abbeville County, South Carolina bear out—don't have the same institutional stiff upper lip.

Besides, some of the problems have nothing to do with the amount of money offered. Sometimes people are just angry at being taken advantage of. For example, in County of Los Angeles v. Anthony, 224 Cal.App.2d 103 (1964), Steve Anthony protested the condemnation of his home for what the County said would be a public motion picture museum. Although Mr. Anthony fended off the County's agents with a shotgun, he didn't end up hurting anyone (although he did serve some jail time). But his anger had a point. That purported museum site is across the street from the Hollywood Bowl—and it is a parking lot, not the use for which it was wrenched from its owner.

A recent 5-year study documented the extent to which the power of eminent domain is being abused to take property from some private citizens and turn it over to others for different private uses. (Dana Berliner, Public Power, Private Gain [Institute for Justice 2003].) Regardless of the amount paid, many people are offended that they can be forced by their government to yield their property so that somebody else can profit from it.

One of the cases documented by Ms. Berliner in her book is Connecticut's Kelo case, now pending in the U.S. Supreme Court. Ms. Berliner (and the Institute for Justice, where she works) is representing the property owners in that case.

Does this mean that road agents should start wearing flak jackets when they negotiate with condemnees? Should the process of public land acquisition grind to a halt? Nothing so drastic is needed. Perhaps, however, governments at all levels could use a bit of what the touchy-feely folks call sensitivity training. The world is changing, and one cannot simply dismiss the South Carolina shooters as hopeless wackos. They may have been, but to the extent that their rage was ignited by the treatment they received from their government, it warrants thoughtful attention.



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