Supervisors call for review of county's eminent domain policies

The San Diego County Board of Supervisors directed the county’s Chief Administrative Officer to review all policies of the County of San Diego relating to the use of eminent domain.

The 5-0 vote July 26 also directs the CAO to return to the board within 120 days to recommend changes to ensure that the use of eminent domain is restricted to actions which benefit the public.

“There is a clear distinction between a public benefit and a private benefit,” said Supervisor Greg Cox. “This is the appropriate action to take.”

The action was in response to the United States Supreme Court decision in Susette Kelo, et al., versus City of New London, Connecticut, et al. The Supreme Court’s 5-4 decision June 23 allowed the City of New London to take 15 homes in the Fort Trumbull neighborhood to revitalize the city’s economy. Previous court cases had allowed the use of eminent domain to transfer private property to public entities or even private owners as long as the public use was clear, but the City of New London sought to take private properties which were not blighted and transfer those properties to a private owner who will profit from the taking while only incidentally benefitting the public.

“It tramples on the rights of private property owners,” Supervisor Dianne Jacob said of the Kelo v. New London decision.

“I think this sets a dangerous precedent,” Supervisor Bill Horn said of the Supreme Court case. “The majority of the Supreme Court has forgotten the reason we left Old London and said goodbye to King George.”

According to realtor and former San Diego City Councilman Fred Schnaubelt, who addressed the supervisors during the July 26 hearing, the Cypress City Council condemned a church in order to build a warehouse store. “A farm can be taken for an industrial park,” Schnaubelt said. “You can take the horse trails and put them across anybody’s property.”

Ironically, it was the concerns about property takings which caused initial apprehension to the county’s Multiple Species Conservation Program and to the San Dieguito River Valley Joint Powers Authority of which the county is a member. In neither case did the county use eminent domain as an option to acquire land for the conservation programs.

“The results have been really outstandingly good,” Supervisor Pam Slater-Price said. “Once that that has been taken off the horizon, we’ve had more cooperation.”

The inclusion of a willing seller or willing easement grantor condition is also part of the county’s trail plan.

“It’s kind of odd that you even have to bring this up and affirm your belief,” Schnaubelt said to the supervisors.

Horn and Supervisor Ron Roberts, who docketed the agenda item, felt that a review of policies would guard against future abuse. “When we employ eminent domain it’s only in instances of public use or public benefit,” Horn said. “Guarding against government abuse in the eminent domain area, I think, is critical for us.”

Horn hopes that someday the Supreme Court will recognize the Bill of Rights, which includes restrictions against the takings of property. “Until they do that, I think the county needs to examine our policy,” he said.

“Eminent domain’s a very powerful government tool,” Roberts said. “Now we’ve seen a situation where good people can be losing their homes because in some jurisdictions they’re more interested in economic gain than the fundamental rights of their citizens.”

Nearly all of the county’s use of eminent domain involves right-of-way acquisition for road widening or other public works projects. Court decisions prior to Kelo v. New London have allowed the condemnation of blighted properties in redevelopment areas.

“We need to guard against future abuse,” Roberts said. “As we look into the future in the redevelopment areas, we have to take a hard look.”

State law currently requires findings of blight. “Land does not qualify as being blighted simply because it is not being used to its optimal use,” Slater-Price said. “I think that it’s very appropriate that we shine a bright light on this.”

Adoption of a policy restricting the use of eminent domain to actions which would benefit the public will ensure that changes in state law or in the composition of the Board of Supervisors do not result in threats to private property ownership in the unincorporated area.

Schnaubelt told the supervisors that the city of Mesa, Arizona, has already passed a resolution prohibiting the transfer of condemned property to private parties except for public utilities or other common carriers or when private entities such as a retail establishment on the ground floor occupy an incidental area in a public project.

“What we can do is act to give protection from this decision,” Jacob said.

“Today we’re sending a message: eminent domain is not a power that the board takes lightly,” Roberts said.