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Gathering Steam

By Megan Kinneyn | Jun. 2, 2007

Law Office Management

Jun. 2, 2007

Gathering Steam

Despite the defeat of Proposition 90, property-rights advocates remain intent on limiting eminent domain powers in California. By Laura McClure

By Laura McClure
      Edited by Thomas Brom & Martin Lasden

      Two years after the U.S. Supreme Court ruled that cities can use eminent domain to further private economic development (Kelo v. City of New London, 545 U.S. 469), opposition to the ruling shows no sign of abating. Thirty-four states have passed laws that curtail the use of eminent domain, and even Hollywood has weighed in: Last fall, eminent domain was a suspected motive for murder in an episode of CSI: Miami, titled "Death Eminent."
      The California Legislature has passed five laws in response to Kelo, but property-rights advocates still aren't satisfied. In November, voters narrowly rejected Proposition 90, which contained a controversial regulatory-takings provision and would have dramatically circumscribed eminent domain powers. "If Prop. 90 had passed, there would be no more redevelopment as we know it," says Michael M. Berger, a partner at the Los Angeles office of Manatt, Phelps & Phillips.
      "People in the Legislature realize that if something isn't done [to limit the broad use of eminent domain], the voters will take it away next time," Berger adds. "And they will provide remedies that are far more stringent than the governing people would like to see."
      Several state constitutional amendments, including two ballot initiatives, have risen from the ashes of the Prop. 90 campaign. But so far none has passed muster with property-rights advocates as a whole.
      Timothy Sandefur, an attorney with the Pacific Legal Foundation in Sacramento, calls a proposal from the League of California Cities that would protect only owner-occupied homes "an obvious fraud," because most redevelopment takes place in business districts.
      Sandefur also faults a ballot initiative proposed by the Howard Jarvis Taxpayers Association. "It contains a big, obvious loophole," he says, in the form of regulations that prevent farmers from selling their land to developers when they retire?something "they tend to want to do sometimes," according to Sandefur.
      Whatever their differences, property-rights advocates agree that changes in the law will occur at the state, not federal, level. In California, that means more wrangling to come on statewide ballot initiatives. As for those, Wesley W. Horton, who argued for the city of New London in Kelo, told a legal symposium in Southern California this spring, "I must confess, I'm glad New England doesn't do that sort of thing."

Megan Kinneyn

Daily Journal Staff Writer

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