Governmental Power to Take Land Targeted

Lawyer Gideon Kanner says he watched two “adorable” chipmunks get into a fight to the death some years ago in the Sierra and suddenly understood something about why people feel so strongly about eminent domain.

People, like chipmunks, “react very violently when they feel their territory is being messed with,” said Kanner, a Loyola Law School professor who specializes in eminent domain--the taking of private property, with compensation, for the public good.

Governments have been exercising the power of eminent domain since the Middle Ages, but today, as never before, property owners are rising up in protest and banding together to resist the taking of their land. The focal point for much of this effort is the use of eminent domain for redevelopment projects.

In Anaheim and Huntington Beach, grass-roots campaigns earlier this year turned back those cities’ plans for major redevelopment projects. Similar efforts have been mounted in other communities from Imperial Beach in San Diego County to Rosemead in the San Gabriel Valley.

And now there is an added dimension: a loosely associated statewide coalition of anti-redevelopment forces that exerted enough muscle in Sacramento this year to kill a major land-use bill by Sen. Marian Bergeson (R-Newport Beach), chairwoman of the Senate Local Government Committee. The measure, SB 442, as originally written contained an eminent domain provision that triggered a well-organized and emotional lobbying effort the bill could not survive.

Sherry Passmore of Arcadia, leader of the coalition and a consultant to citizens groups, including one in Huntington Beach, said the coalition is now organizing to generate letter-writing campaigns and otherwise help local groups throughout the state fight redevelopment plans, among other things.

“SB 442 rekindled the fear and concern that citizens have with how cities are governing themselves,” Passmore said. “The goal is to allow citizens to control their own cities and not be controlled by outside developers.”

Passmore and other leaders of the coalition complain that the traditional intent of eminent domain--to acquire property to build highways, schools and other public facilities--has been subverted. Now, they say, it is used too frequently to assemble property for developers involved in redevelopment projects.

While this can help cities broaden their tax bases, there is a growing belief among small businesses and residential property owners that redevelopment plans ignore their rights, she said.

“The very basic right in America is to own property,” Passmore said. “You work hard for it. You go to war to protect it. And to have someone come in to take it away from you to have them make a profit--that’s wrong.”

Murray Kane, a Los Angeles attorney who represents redevelopment agencies, said he sensed that in the last two years there has been a change in the public’s reaction to redevelopment and the eminent domain battles that go along with it. Kane advised a city recently not to include a residential area in a project that eight or 10 years ago might have been included, unless the city council would “like to have 500 people come and scream at them.”

Residents in Huntington Beach hired Passmore to help them defeat a redevelopment plan for a five-mile stretch of Beach Boulevard by preparing a 346-page report to stack up against the city’s staff report at a meeting attended by 350 residents. The plan would have allowed the city to buy property under eminent domain laws and resell it to developers. It would have affected 1,100 businesses, 400 property owners and 180 residents along the major north-south artery.

“There is a lot of fear, generally, that the city is going to come in and steal their property,” Rich Barnard, assistant to the city administrator of Huntington Beach, said recently of the plan’s defeat.

Rosemead residents concluded a two-year effort in May that defeated a plan to take 300 homes for land for a high school. In San Diego County’s Imperial Beach, voters twice rejected a redevelopment agency plan designed to improve its beachfront and this year elected a slow-growth council majority to ensure the issue would not surface again.

In Anaheim, the City Council withdrew its $2.7-billion Katella Redevelopment Project after residents organized against it. Under a worst-case scenario described in an environmental impact report, as many as 7,000 people could have been displaced under the seven-square-mile plan if some residential property had been converted to commercial uses. The council scrapped the plan after hundreds of residents organized a rally, started a newsletter and launched various fund-raising activities.

Pasadena lawyer Christopher Sutton, who was the attorney for Anaheim Homes (Homeowners for Maintaining their Environment) in its defeat of the ambitious plan favored by Disneyland, said he almost wishes the council had not backed off.

“It would have been a lightning rod for redevelopment activists, perhaps nationwide,” Sutton said. “We would have had a wonderful time. We would have got our experts wearing Mickey Mouse ears and Donald Duck faces.”

Sutton said the anti-redevelopment uprising is “the tail end of the tax reform movement in the sense of government seen as a suspicious entity.”

“What happened is the tax reform movement succeeded so dramatically in terms of spiritual force involved,” Sutton explained. “After you win and you’re rolling, you elect a president, a governor--where does your psychic energy go, so to speak?”

What happened, he said, is that people began to focus on the abuse of government power, in particular redevelopment, overdevelopment and eminent domain.

It was in this atmosphere that Bergeson’s land use bill was written. It was aimed at helping hundreds of thousands of individual property owners throughout the state who are unable to use their land because their lots are geologically unstable, too small or otherwise substandard for building purposes.

The legislation was the result of several public hearings in which a cadre of professional planners, civic groups, builders and land conservation organizations painstakingly tried to come up with a way to allow at least some property owners to combine their lots with others’, redesign them and either develop them or sell them, sharing in the profits.

Initially, the measure was considered so non-controversial that it sailed through the Senate and was already in an Assembly committee before Passmore and others learned of it.

Peter Detweiler, consultant to the Senate Local Government Committee, said the issue was studied for months by a 43-member advisory committee before it reached the Legislature, to ensure that everyone concerned would support the bill.

“This was a classic consensus-building method,” Detweiler said. “Up to the point Sherry entered the picture, it worked.”

What upset Passmore was a provision covering situations in which some property owners refused to participate in combining their substandard lots with others’ for development or sale. It would have enabled the owners who did want to participate to petition local governments to allow the formation of an agency that could use eminent domain powers to combine and re-subdivide the property. The bill required that two-thirds--which later was amended to three-fourths--of the property owners in the area affected had to favor the move.

Using her sons to help her stuff envelopes, Passmore, who has been active in opposing redevelopment plans for about 14 years, sent about 300 notices to homeowner groups, property owners’ associations, taxpayer groups and others all over the state. She asked them to contact others who might be concerned about the eminent domain provision.

Passmore said that even she was surprised by the response. “It just mushroomed and multiplied,” she said.

What followed, much to Bergeson’s surprise, was a torrent of emotional letters, petitions and telephone calls to Bergeson and other legislators demanding that the bill be killed.

One angry letter to Bergeson ended with this:

“You are despicable!!!!!!! We should shoot all you politicians.”

Other letters were more reasoned, expressing fears that the legislation would not be used by people as it was intended but by developers as a new way to grab land.

“(It) clears the way for homeowners to be the target of a ‘hostile takeover,’ ” said Rosemead homeowner Michael A. Salazar. “Such a power in the hands of the wealthy developers is certainly destined for abuse.”

Hundreds of people signed petitions decrying the bill as “a terrible abuse of people’s rights” that would “place power in the wrong hands and put people at the mercy of unscrupulous land developers and disgruntled neighbors.”

“It certainly tapped into some strong feelings,” said Detweiler, who helped shepherd the bill through the Legislature. “There is some huge, dark passion that was tapped into with this bill.”

It is just the sort of citizen lobbying that tends to make legislators very nervous. Bergeson eventually exempted single family dwellings from the measure and, finally, entirely amended out all eminent domain provisions. But by then, it didn’t matter. The bill died.

Bergeson, who was stunned by the response to the bill and the subsequent criticism of her motives, said she thought the bill was misunderstood. She said she viewed the bill as private property rights legislation to help individual landowners. The eminent domain provision, she said, was “so restricted it was virtually unusable.”

“The people who testified before the committee I don’t think had read the bill because statements they made had no references to what was in it,” Bergeson said. “It became a movement, rather than a focus on what the bill was doing.”

Madelyn Glickfeld of Malibu, the land use consultant who first brought the problem of substandard lots to the attention of Bergeson, said the furor over the bill was a “clear indication that people feel more strongly and are more concerned about the abuse of the eminent domain power right now than they have been in quite some time.”