Eminent Domain

By John J. "Jack" Hickey

Constitutional origin of Eminent Domain along with examples of it's abuse by government agencies.

"No person shall be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Much has happened to trivialize the use of a power reluctantly granted by our Founding Fathers.

My first encounter with the issue of "eminent domain" occurred in Hawthorne, California in 1964.

As a leader of Goldwater supporters "out of a job", I successfully petitioned for a Referendum election to overturn an Urban Renewal Agency Ordinance. The issue, according to Mayor James Wedworth and his cronies, was to develop a "shopping center" to produce tax revenues for the City. Wrong! The issue was the use of "eminent domain" for acquiring private property with dubious justification.

The following questionaire was used to solidify voter support:

Do you think that "eminent domain" should be used to force people to sell their property for:

Highways

Schools?

Chavez Ravine(Dodger Stadium) involved relocation of native Americans

L.A. Museum parking lot - ex-Marine used armed resistance to ward off attempts to force him and his family out of their home

Shopping Center in Hawthorne

Guess what? Voters thought that acquiring land for a shopping center was an inappropriate use of "eminent domain", and responded with a resounding 2/1 defeat of the Urban Renewal Ordinance.

Much local attention was recently focussed upon the action of a "local agency" of the State of California in their effort to acquire land for "open-space" in San Mateo County by the use of "eminent domain" proceedings.

Excerpts from the San Jose Mercury News

03/03/98 - OPEN-SPACE AGENCY MAY BLOCK MONASTERY - NUNS COULD LOSE LAND TO EMINENT DOMAIN An order of silent, cloistered Russian Orthodox nuns who wish to develop a monastery on their San Mateo County hillside faces a Peninsula open-space agency that may evoke eminent domain powers to seize the 284-acre property. The Russian Convent of Our Lady of Vladimir had lands seized three times in Russia and China before fleeing to find freedom from religious persecution, their lawyer said.

03/16/98 - OPEN-SPACE DEBATE NEARS ITS CLOSE - EMINENT DOMAIN VOTE IN 2 DAYS 03/19/98 - HUNDREDS SUPPORT MONASTERY PROJECT - OPEN SPACE BOARD URGED TO DEFER 03/20/98 - NUNS LOSE ROUND IN BID TO BUILD MONASTERY; LAND MAY BE SEIZED An order of cloistered Russian Orthodox nuns lost a key battle Thursday to build a monastery on a dramatic San Mateo County ridge and must turn to the courts to revive plans for a secluded retreat for their contemplative life.

The Midpeninsula Regional Open Space District voted 6-1 to seize the nuns' 284-acre property to protect it from development, despite pleas from hundreds of Russian Orthodox congregants ...

03/25/98 - SUPERVISORS VOTE SUPPORT FOR CONVENT San Mateo County supervisors voted unanimously Tuesday to protest an open space district's vote to condemn the Woodside ridgetop property where a group of Russian Orthodox nuns had planned to build a convent. The motion, presented by Supervisor Mike Nevin, asked the Midpeninsula Regional Open Space District to take back its 6-1 vote last week to sue the sisters of Our Lady of Vladimir to keep the 284-acre parcel from being developed.

04/08/98 - ACCORD NEAR TO ALLOW CONVENT ON RIDGE FACING HEAT, OPEN SPACE DISTRICT WILL REVISIT DECISION TO BUY LAND Pressured by two state legislators and stinging from a public relations debacle, a San Mateo open space agency is closing in on an agreement with a cloistered sect of nuns to allow a monastery along a scenic ridge.

Representatives of the Russian Convent of Our Lady of Vladimir and the Midpeninsula Regional Open Space District have been in negotiations for two weeks and are near an agreement to allow the nuns to build their convent and retreat center while leaving 90 percent of their 280 acres unde...

04/09/98 - AGENCY AGREES TO LET NUNS BUILD ON LAND A Peninsula conservation agency bowed to public and political pressure and agreed Wednesday to let a cloistered order of Russian Orthodox nuns build a monastery on a San Mateo County ridgetop.

In doing so, the Midpeninsula Regional Open Space District reversed an earlier decision to seize the land for protected open space. The site commands sweeping views of the Pacific Ocean and San Francisco Bay.

04/12/98 - HILLTOP CONVENT PLAN FACES ENVIRONMENTAL REVIEW Although a Russian Orthodox convent has won the right to develop its land near Skyline Boulevard, controversial plans for a ridge-top monastery there are far from a fait accompli.

Once the Midpeninsula Regional Open Space District reversed its decision to take the nuns' land, the way seemed clear for the project. But the monastics still must convince San Mateo County planners and supervisors that the project meets strict environmental regulations.

What happened in this instance is not an isolated event.

Is the acquisition of "open space" land a "compelling public interest, justifying the use of eminent domain? I think not! Better that we require at least a 2/3 vote for such action.

It can happen again!

How did the MROSD get the power of Eminent Domain?

How can it be revoked?

Some relevant Codesections are shown below.

Complete Searchable Code and Constitution are available at:

http://www.sen.ca.gov/

CALIFORNIA CODES - PUBLIC RESOURCES

CODESECTION 5790-5791

5790. Recreation and park districts may be formed pursuant to this chapter with all of the powers and duties of recreation and park districts formed pursuant to Chapter 4 (commencing with Section 5780)of this division, except the power of eminent domain. All of the provisions of Chapter 4 of this division, except the provisions relating to the exercise of the power of eminent domain by districts pursuant to that chapter, are hereby made applicable to the formation, government, powers and duties, and all other matters relating to recreation and park districts without the power of eminent domain.

5791. Notwithstanding any provision of Chapter 4 (commencing with Section 5780) of this division, all petitions, resolutions, ordinances, and other public documents and records relating to districts formed or proposed to be formed under this chapter shall specify that the district is formed, or proposed to be formed, under this chapter.

5500. "District," as used in this article, means any regional park district, regional park and open-space district, or regional open-space district formed pursuant to this article.

5501. A district may be created pursuant to, and it may exercise the powers granted by, this article.

5502. (a) Three or more cities, together with any parcel or parcels of city or county territory, whether in the same or different counties, may organize and incorporate. All the territory in the proposed district shall be contiguous. (b) Notwithstanding subdivision (a), one or more cities, together with any parcel or parcels of city or county territory, whether in the same or different counties, the territory of all of which when combined has a population of at least 50,000, may organize and incorporate. All the territory in the proposed district shall be contiguous.

5503. Whenever it is desired to form a district, a petition requesting the creation and maintenance of a district, and describing the exterior boundaries of the proposed district shall be signed by at least 5,000 electors residing within the territory proposed to be included in the district and shall be presented to the board of supervisors of the county containing the largest area within the proposed district.

5504. A petition may consist of any number of separate instruments, all of which together shall constitute one petition. Each instrument shall contain the affidavit of the person who circulated it, certifying that each signature is the true signature of the person whose name it purports to be. Every elector signing the petition shall write his address opposite his signature. The clerk of the board of supervisors of the county having the largest area within the proposed district, shall check and verify the signatures to the petition and certify the result of the examination to the board of supervisors.

5505. If the petition contains names of electors residing in a county other than the one having the largest area within the proposed district, and does not contain the requisite number of signatures of electors residing in the county having the largest area within the proposed district, a duplicate original of the petition shall be filed with the board of supervisors of the other county, and the clerk of the board of supervisors of the other county shall likewise check and verify the signatures to the petition and certify the result to the board of supervisors of his county, and thereupon copies of the clerk's certificates shall be transmitted to each county affected.

5506. If the petition contains sufficient signatures of electors residing in the county having the largest area within the proposed district, but the petition includes land within another county or other counties, the clerk of the board of supervisors of the county having the largest area within the proposed district shall transmit a certified copy of the petition and of his certificate to the board of supervisors of the other county or counties.

5506.4. (a) Proceedings for the formation of a district with boundaries coterminous with those of Napa County may be initiated by resolution of the Board of Supervisors of Napa County adopted after a hearing noticed in accordance with Section 5511, in lieu of a petition. (b) The resolution shall do all of the following: (1) Name the proposed district and state the reasons for forming it. (2) Specify that the proposed district shall be governed by a board of five directors who shall be elected in accordance with this article and that no member of the board of supervisors shall be a director. (3) State that the territory of the proposed district shall include all of the territory within Napa County, including incorporated cities. (4) Specify the boundaries of the five wards or subdistricts drawn pursuant to Section 5515. (5) Specify that the district shall not have, and may notexercise, the power of eminent domain pursuant to Section 5542 or anyother provision of law. (6) Describe the methods by which the proposed district will be financed. (7) Call an election pursuant to Section 5514. (8) Include any other matters necessary to the formation of theproposed district.

5542. A district may exercise the right of eminent domain to take any property necessary or convenient to accomplish the purposes of this article. A district may not acquire by condemnation any of the lands, properties, or facilities of any municipal utility district which are appropriated to public use or are used in or are useful to the operations of the municipal utility district or which are within the watershed of any stream or reservoir which supplies water for domestic use or which the directors of the municipal utility district determine by resolution to be properties which are required for the purposes of the municipal utility district.

5542.5. (a) Notwithstanding any other provision of law to the contrary, and except as provided in subdivision (b), when property,whether owned in fee or lesser title interest, leased, or operated under a license, management agreement, or otherwise, is appropriated or otherwise acquired for public use as a regional park or regional open space or both operated by a district, there is a rebuttable presumption of its having been appropriated or otherwise acquired for the best and most necessary public use. The presumption established by this subdivision is a presumption affecting the burden of proof. (b) When such property is sought to be acquired for city or county road, street, or highway purposes, and such property was dedicated to or established for park, recreational, or open-space purposes prior to the initiation of road, street, or highway route location studies, an action for declaratory relief may be brought by the district in the superior court to determine the question of which public use is the best and most necessary public use for such property. Such action for declaratory relief shall be filed and served within 120 days after publication by the city or county, ast he case may be, in a newspaper of general circulation pursuant to Section 6061 of the Government Code, and delivery of a written notice to the district by the city or county that a proposed route or site or an adopted route includes such property. Such action for declaratory relief shall have preference over all other civil actions in the matter of setting the same for hearing or trial to the end that any such action shall be quickly heard and determined. If an action for declaratory relief is not filed and served within such 120-day period, the right to bring such action is waived and the provisions of subdivision (a) shall not apply. When a declaratory relief action with respect to such property being sought for city or county road, street, or highway purposes may not be brought pursuant to this section, the provisions of subdivision (a) shall not apply.