October 8, 2010

Can government ignore reality to get around the rule of law?

By Can government ignore reality to get around the rule of law?

Author: Luke A. Wake

Roy and Joyce Fowler are embroiled in a legal battle to keep their family business on a busy corner in Azusa, California. The City is trying to take their property from them. Azusa plans to replace their successful furniture store with a restaurant as part of a "redevelopment project." This is yet another realization of Justice O'Connor's warning from her dissentting opinion in Kelo v. New London Connecticut, in which she railed against the Court's decision to allow municipalities to use the eminent domain power to redistribute property to private parties. O'Connor warned that, under an expansive interpretation of the eminent domain power, "Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."  

Unfortunately, in California, cities are allowed to take private property for redevelopment projects like this one. There are only a few constraints on that power. Before private property can be taken for redevelopment purposes, the city must find substantial evidence that the property is blighted, and must then determine that it is necessary to take the property in order to revitalize the area. But, in this case Azusa is trying to take short-cuts to get around these modest limitations on its eminent domain powers.

In 2003 Azusa made a finding that the Fowlers'property was blighted, but seven years later, much in the community has changed; now the Fowlers contend that their property is no longer blighted. Nonetheless, Azusa has initiated eminent domain proceedings to take their property on the basis of the 2003 blight finding without giving the Fowlers any opportunity to offer evidence of changed circumstances. This represents a violation of the Fowlers' due process right to present relevant evidence in a proceeding to take their property.

Azusa's power to take property for redevelopment purposes is authorized under California statute explicitly for the purpose of combating blight, and for no other purpose. The legislature sought to protect private property by requiring a finding of blight. But here Azusa is trying to rely upon an outdated blight finding, and is arguing that the Fowlers shouldn't even have an opportunity to question that finding in court.

In support of the Fowlers, PLF has filed an amicus brief arguing that Azusa should not be allowed to avoid the plain requirements of the law by ignoring the reality of changed circumstances. Cities should not be allowed to designate a property as blighted and to then rely upon that blight designation indefinitely. Logically a blight designation can only be valid so long as blight conditions remain, but where a property is improved, the original blight designation should be reexamined if challenged.

  

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