Jon Coupal- Columnist
is an attorney and president of the Howard Jarvis Taxpayers
Association -- California's largest taxpayer organization with
offices in Los Angeles and Sacramento. [go to website] [go
to Coupal index]
Your Home Really Yours?
Eminent domain - the government's trump card…
[Jon Coupal] 3/9/05
The United States Supreme Court has just heard arguments in
a community redevelopment case that may loosen your grip on your
The court battle began when several New London, Connecticut
homeowners -- including one who has lived in her home since she
was born in 1918 -- objected to the city's use of eminent domain
to seize their property so that it could be turned over to a
developer who would return more tax revenue.
At issue is the scope
of protection of the U.S. Constitution's Fifth Amendment which
states "nor shall private property
be taken for public use without just compensation." Specifically,
what do the words "public use" mean?
The Fifth Amendment, it has been traditionally argued, allows
for the taking of private property for such public benefits as
road or school construction. This makes sense because, especially
with roads, one hold-out property owner can frustrate the purposes
of an entire community.
However, can this definition of public use be expanded, as it
has been by New London officials and redevelopment agencies across
the nation, to apply to any seizing of property simply for the
purpose of putting more money into a city's budget?
In response to a question by Supreme Court Justice Sandra Day
O'Conner, an attorney for New London expressed the view that
it would be okay for a city to evict a Motel 6 in favor of a
Ritz-Carlton if the result would be greater revenue.
For many homeowners, the city's argument has all the subtlety
of the schoolyard bully who justifies taking your lunch money
because, he says, he has a better use for it.
In California, we've
seen redevelopment agencies run roughshod over property owners
for years. Unspoiled homes and other property
are declared "blighted" so they can be condemned and
turned into car dealerships or supermarkets that will produce
more tax revenue. The actual condition of the property that is
condemned seems to have little relevance -- in at least one instance
a golf course was declared blighted because it suited the goals
of the redevelopment commission. Back in New London, the homes
targeted by the city would be regarded by most people as middle
Bad behavior by redevelopment agencies is not all that surprising
when one realizes that in many communities the redevelopment
commissioners are city council members wearing a different hat.
What better way to repay a developer's campaign contribution
than to reward them with a piece of prime property for a new
While many California
homes continue to be threatened by redevelopment agencies,
there was a time -- before Proposition 13 -- when all
were vulnerable to the machinations of government officials.
In the old days, property was assessed at its highest and best
use. If your single family home was in an area recently rezoned
for apartment buildings, your property tax would reflect this
potential use. Needless to say, many homeowners could not afford
the higher taxes so they sold their property to a developer of
-- surprise -- apartment buildings. So, without ever having to
mention the words "eminent domain", officials were
able to squeeze homeowners out and increase tax revenue through
the use of zoning ordinances.
Now, thanks to Proposition 13, California homeowners have assurance
that they won't be forced to sell or give up their homes to the
tax collector. This is because they are taxed based on what they
were willing and able to pay for their home, not on the arbitrary
decisions of politicians. In California, Proposition 13 gives
us the reasonable expectation that we will keep our homes --
unless, of course, city council members put on their redevelopment
Unfortunately, the protections of Proposition 13 do not protect
against arbitrary exercises of the power of eminent domain. And,
from early accounts from the Supreme Court hearing, we are not
optimistic about the chances of a property owner victory in the
New London case.
But California municipalities
need to be careful about over-reaching in their own application
of the "public use" doctrine.
Folks in New London don't have the initiative power. California
homeowners do. CRO
is an attorney and President of the Howard Jarvis Taxpayers
2005 Howard Jarvis Taxpayers association