The battle over eminent domain continues in the Capitol. On one side is the initiative sponsored by the Howard Jarvis Taxpayers Association (HJTA) to solve the problems presented by the US Supreme Court in the Kelo v. City of New London case. On the other are the defenders of the status quo, the League of California Cities and the California Redevelopment Association. Also on the side of big government are some of those who benefit financially from the exercise of government power, groups that use government influence, and the exercise government power for personal gain.
As an attorney, prior to my time in the Legislature, land use, property rights, and abuse of government power in the control of property was a specialty of mine. I started my stint in politics as Chair of the Citizens For Property Rights in Riverside County and spent much of my time arguing for the rights of landowners on my local Planning Commission. As one of the most ardent supporters of property rights, my friend, Gil Ferguson once adamantly insisted that the Republican Caucus to listen to my counsel on the issue. He knew, as I know, that every freedom we have, freedom of speech, freedom of religion, freedom of association, and freedom of the press, all depend upon and begin with the protection of private property rights. A government that can take your land with impugnity can also threaten to take your land if you speak your mind. Most business-oriented people would rather remain silent than lose their retirement or their business.
Those who believe in the expansion of government power have sponsored ACA 8, by Hector De La Torre, a Los Angeles Democrat. They have attempted to portray their efforts as "reform." Yes, ACA 8 has granted some extremely narrow "reforms." But, simultaneously, it eliminates far more protections for landowners, currently recongnized by courts. It is a deception, a purposeful deception, designed to fool Republican voters and legislators into supporting a so-called "Kelo reform" which truly is no reform at all.
Let’s start with one of the rules of legislative intent. For the lawyers in the group, it is called expressio unis est exclusio alterius. In English that means that if a law or statute list some things, it necessarily excludes those things not listed. Today, in California law, all property owners have some protection from the full use of Kelo. With the most recent set of amendments, ACA 8 lists only single family homes, duplexes (where the owner occupies some part of the duplex), agricultural land with huge loopholes, and "places of worship" or one additional location to be used as a "future place of worship" pursuant to unreasonable requirements as protected. All those properties currently protected by case law from the worst parts of Kelo lose all protections. That means that family farms, small businesses, retirement investments, church properties and the rights of landowners can be taken with impugnity unless they meet the narrow exceptions defined in the constitutional amendment — ACA 8.
Interestingly enough, even churches lose protections under ACA 8. Today, they have some small protections on all of their land based on case law. ACA 8 takes that away and provides them only with protection on the land where there is a "house of worship" and one other piece of land that will be a "future place of worship" and that they must jump through hoops to protect. So much for freedom of religion–churches are only granted the freedom that government gives them. Quite frankly, today, the worst stories on eminent domain abuse come from government trying to steal church land. If we give some small protection on "places of worship," the worst stories go away, but the abuse continues.
For example, one of the provisions of ACA 8 protects a church’s land if that land is protected by Article XIII, Section 4, subsection d of the California Constitution. That section protects land that is "reasonably necessary" for a parking lot for a church. Of course, what is "reasonably necessary" for parking is a question of fact, and, in an eminent domain proceeding, the "trier of fact" is the condemning agency. Therefore, if a redevelopment agency "finds" that the land they want is not "reasonably necessary" for a church parking lot, it is "too bad," the church loses the land, a court cannot undo the redevelopment agency’s finding, no matter what. A church could be left with two parking spaces, if the redevelopment agency decides that is "reasonable."
Worse than that, it offers no protection at all to businesses. Yes, under current law they are entitled to some small compensation when they are taken by eminent domain. ACA 8 marginally increases that compensation, but it reserves government’s right to steal a person’s business or property and leave that person powerless to prevent the taking or be fairly compensate for that taking.
In the end, ACA 8 is worse than no reform at all. It masquerades as "real" protection, but hurts all landowners, expands government power, and does it all under the "guise" of reforming eminent domain. Some of my friends in the legislature are being encouraged to believe that by supporting ACA 8 they are protecting landowners. Quite frankly, they are being deceived. Putting ACA 8 into the California Constitution is worse than enacting no "reform" at all. At a minimum, without ACA 8, private property owners have a fighting chance.