Swiss Cheese Eminent Domain “Reform” in California—Again


by Timothy Sandefur

Today, California Assemblyman Richard De La Torre unveiled a proposal to reform eminent domain in California. Unfortunately, it would actually provide virtually no protection to California’s property owners. You can read the proposal here.

Among its many loopholes, the proposal protects only "owner occupied residences," not apartment buildings or leased homes. Of course, apartments and leased homes are more often occupied by poorer people or those with less political influence—that is, they are more often targets of eminent domain abuse. Moreover, homes are very rarely taken for transfer to private developers, since developers are more interested in property in business areas, not in residential areas.

Second, the proposal also protects "small businesses," but only those small businesses that employ fewer than 25 people—when California law defines a small business as employing fewer than 100 people. So a great many small businesses in California would not qualify for protection.

Indeed, the proposal goes on to say that small businesses can still be taken as part of a "comprehensive plan to eliminate blight." As readers of this blog know well, "blight" is defined so vaguely in California law (and the laws of most states) that virtually any neighborhood can be declared "blighted." (For instance, one element of the definition of blight is "factors that substantially hinder the economically viable use of property." What does that mean? Whatever the city council says it means.)

The proposal also declares that homes and small businesses and all other property can be condemned for "private uses incidental to…[a] Public work or improvement."That means (as I mentioned in this blog post) that if the government built, say, a "civic center"or a branch of the public library into a shopping center (like Victoria Gardens in Fontana) it could then condemn surrounding property and transfer it to private developers.

Notice that the proposal doesn't define "private person." This is important, because the proposal prohibits the taking of property for the benefit of "private persons"!

Also, the proposal would not apply when the government takes property to "prevent[] serious, repeated criminal activity." So if the city council thinks that replacing an apartment building with a shopping mall would cut down on shoplifting, then it could still take homes—apartments are homes—and transfer the property to private developers.

What's more, the proposal declares that "he words and phrases" that are "not defined in subdivision (h)," would be "nterpreted in a manner that is consistent with the law in effect on January 1, 2007," which suggests that this proposal could make Kelo a part of California constitutional law, which it is not, now. Right now, Kelo is only federal law. But if the term "public use" is defined "in a manner that is consistent" with Kelo, then the California Constitution would also enshrine Kelo.

Finally, the proposal does not provide for attorney's fees, which means that property owners would find it prohibitively expensive to stand up for their property, just as they do now.

The bottom line is this: the proposal would provide very little protection for California's homeowners, virtually no protection for California's small business owners, and literally no protection for churches, farms, investment property, apartment buildings, and so forth.

By the way, who is the "Californians for Eminent Domain Reform"? If you call the number, it's the PR firm that ran the No on Prop. 90 campaign!