Constitutional Law: Real Estate Eminent Thesis

" (GAO, 2006) Issues involved are stated to include "the dispersal of residents in low-income communities to other neighborhoods or cities." (GAO, 2006) it is stated that an inherent right of "sovereignty, eminent domain in a government's power to take private property for a public use while fairly compensating the property owners." (GAO, 2006)

There have been actions in state legislatures toward prohibition of "certain eminent domain practices, such as preventing property from being transferred to one private party to another for specific purposes..." (GAO, 2006) Eminent domain laws in many states have been changed so as to permit "private-to-private transfers only if it meets certain conditions, such as the property having been determined to be blighted." (GAO, 2006) However, these modified eminent domain laws have not undergone testing and moreover there is no available historical data on eminent domain use by which to make comparison of the effects that these laws have upon property rights, states and local government use of eminent domain which remains unclear. (GAO, 2006; paraphrased) it is stated: "Regardless of their stance in the debate on eminent domain, government officials and property rights groups we interviewed identified a few concerns related to the procedures on invoking eminent domain, including the adequacy of compensation amounts and the timeliness of notification about public hearings." (GAO, 2006)

The work of Salkin and Lavine (2008) entitled: "Negotiating for Social Justice and the Promise of Community Benefits Agreements: Case Studies of Current and Developing Agreements" states that a 'Community benefits agreement (CBA) is a private contract negotiated between a prospective developer and community representatives." Specified in the agreement are the "benefits that the developer will provide to the community in exchange for the community's support or quiet acquiescence, of its proposed development." (Salkin and Lavine, 2008) CBA negotiation generally occurs between "coalitions of community groups that often include labor, environmental and religious organizations." (Salkin and Lavine, 2008) Stated as the first "full-fledged CBA" is that of the Staples Center in Los Angeles (2001). It is related however, that "Community residents suffered a blow when the developer failed to provide orally promised benefits after the completion of the project's first phase." (Salkin and Lavine, 2008)

In the case of HFH, Ltd., Petitioner, V. The Superior Court of Los Angeles County, Respondent; City of Cerritos Et Al., Real Parties in Interest. Von's Grocery Company, Petitioner, V. The Superior Court of Los Angeles County, Respondent; City of Cerritos Et Al., Real Parties in Interest L.A. Nos. 30382, 30383 Supreme Court of California 15 Cal. 3d 508; 542 P.2d 237; 125 Cal. Rptr. 365; 1975 Cal. Lexis 248; 6 Elr 20062 (1975) stated is that it is not suggested by the court that "...inverse condemnation lay to challenge a zoning action whose only alleged effect was a diminution in the market value of the property in question. In this particular case, the Plaintiffs wanted the "long-standing principles of the law of just compensation" changed asking that municipal zoning bodies be held liable "for full compensation for any fall in market price due to zoning actions." (1975) in the dissent of Clark J. stated is "California has long recognized that while 'the police power is very broad in concept, it is not without restriction in relation to the taking or damaging of property. [on] the one hand, the policy underlying the eminent domain provision in the Constitution is to distribute throughout the community the loss inflicted upon the individual by the making of public improvements.... On the other hand, fears have been expressed that compensation allowed too liberally will seriously impede, if not stop, beneficial public improvements because of the greatly increased cost." (1975)

Clark J. continues by stating that one fact that should be considered in making a determination of such limits "...is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and as this court has recently recognized in viewing these conflicting policies, the ultimate test whether compensation is constitutionally required, resolves itself into one of fairness. The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness... As it does from technical concepts of property law." (1975) it is the opinion of Clark J. that there is not a requirement of compensation for all "governmental downzoning, However, the compensatory 'or damaged' provision of the California Constitution should apply when by public action land has:

1) suffered substantial decrease in value, 2) the decrease is of long or potentially infinite duration and 3) the owner would incur more than his fair share of the financial burden.(1975)

III. SUMMARY of REVIEW

Eminent domain in Los Angeles, California has been traditionally viewed as acceptable however, it has been most recently noted by higher courts and agencies that there are many unanswered questions in eminent domain procedures throughout the various fifty U.S. states and that the principles guiding the laws of eminent domain are at present very 'unclear'. Sanderfur (nd) notes that there is little in the way of protection provided by California law "today...for property owners under the public use clause, the intent of the non-dependency clause is clear: to protect Californians when an overly pro-government federal bench fails to act. The abandonment of serious public use jurisprudence at the federal level does not require a similar abandonment at the state level, particularly given the unique history of California's Constitution."

IV. ETHICAL DILEMMAS

There are inherent ethical dilemmas, which arise in eminent domain cases. For instance, in cases of blighted communities there is the question of 'what happens to those who are disadvantaged and live in and around the area?' Also present is the question of 'where should cities house the disadvantaged who are perhaps "pushed" out of the area because of the new development?' Finally, the question of governmental policy protection in eminent domain cases for those who do not receive the provision of alternative dwellings.

CONCLUSION

After having conducted the foregoing review it is the conclusion of this writer that eminent domain, while necessary is also fraught with ethical dilemmas. As noted by the GAO in its Congressional Report, the laws of the states relating to eminent domain have not been challenged and are still as of yet very unclear. Arising from this review of California case law is a recommendation that all U.S. states, to include the state of California, conduct further research in this area of study toward the goal of identifying the principles that should guide the use of eminent domain by government and governmental agencies in the future.

Bibliography

Boulard, Garry (2006) Eminent Domain - for the Greater Good. June 2006. State Legislatures.

Eminent Domain: Information about Its Uses and Effect on Property Owners and Communities Is Limited (2006) United States Government Accountability Office - Report to Congressional Committees. 2006. Nov.

HFH, LTD. Petitioner, v. The Superior Court of Los Angeles County. Respondent; CITY of CERRITOS et al., Real Parties in Interest. Von's Grocery City of Cerritos, Petitioner, v. The Superior Court of Los Angeles County, Respondent; City of Cerritos, et al., Real Parties in Interest L.A. Nos. 30382, 30383 Supreme Court of California 15 Cal. 3d 508; 542 P.2d 237; 125 Cal. Rptr. 365; 1975 Cal. LEXIS 248; 6 ELR 20062 (1975) Online available at http://209.85.165.104/search?q=cache:jwI03q6Ns-YJ:www.eminentdomain-law.com/pracAreas/appLaw/decisions/AmiciCuriae/HFHLtdvSuperiorCourt.pdf+Los+Angeles+eminent+domain+ethical+issues&hl=en&ct=clnk&cd=33&gl=us

Mark, Jason (2006) the Central Question. 9 Jun 2006. Grist Environmental News & Commentary.

Peninemann, Milo (2000) Staples Land to Cost Developer Millions More. Los Angeles Business Journal 9 Oct 2000.

Saito, Leland T. (2007) Economic Redevelopment and the Community Benefits Program: A Case Study of the L.A. Live Project, a Los Angeles Sports and Entertainment District. University of Southern California Sociology Department and American Studies & Ethnicity Department.

Sanderfur, Timothy (nd) a Natural Rights Perspective on Eminent Domain in California: A Rationale for Meaningful Judicial Scrutiny of "Public Use." Social Science Research Network. Southwestern University Law Review, Vol. 32-569, 2003.

Salkin, Patricia E. And Lavine, Amy (2008) Negotiating for Social Justice and the Promise of Community Benefits Agreements: Case Studies of Current and Developing Agreements Government Law Center of Albany Law School. 2008 April

Sanderfur, Timothy (nd) a Natural Rights Perspective on Eminent Domain in California:

Rationale for Meaningful Judicial Scrutiny of "Public Use."

Social Science Research Network. Southwestern University Law Review, Vol. 32-569, 2003.

Boulard, Garry (2006).....