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ACA-8 Eminent domain.(2007-2008)

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ACA8:v95#DOCUMENT

Amended  IN  Assembly  September 06, 2007
Amended  IN  Assembly  August 29, 2007
Amended  IN  Assembly  July 10, 2007
Amended  IN  Assembly  May 31, 2007

CALIFORNIA LEGISLATURE— 2007–2008 REGULAR SESSION

Assembly Constitutional Amendment
No. 8

Introduced  by  Assembly Member De La Torre
 (Principal Coauthor(s): Assembly Member Huffman, Jones, Mullin)

March 13, 2007

A resolution to propose to the people of the State of California an amendment to the Constitution of the State, by amending Section 19 of Article I thereof, relating to eminent domain.


LEGISLATIVE COUNSEL'S DIGEST


ACA 8, as amended, De La Torre. Eminent domain.
The California Constitution authorizes private property to be taken or damaged for public use only when just compensation has been paid to, or into court for, the owner of the property.
This measure would require the public use for which the private property is taken to be stated in writing, prior to the commencement of eminent domain proceedings.
The measure would prohibit the state and local governments from acquiring by eminent domain an owner-occupied residence, real property on which a small business is operated, or real property that is used exclusively by the owner for religious worship and is exempt from property taxes under specified provisions, or real property in agricultural use, for the purpose of conveying that property to a private person, except as specified.
The measure would provide that if the property ceases to be used for the stated public use, the former owner would have the right to reacquire the property, as specified. The measure would provide procedures for reacquisition of the property and for assessment of the value of the reacquired property.
Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  
Resolved, by the Assembly, the Senate concurring, That the Legislature of the State of California at its 2007–08 Regular Session commencing on the fourth day of December 2006, two-thirds of the membership of each house concurring, hereby proposes to the people of the State of California, that the Constitution of the State be amended as follows:

First—

 That Section 19 of Article I thereof is amended to read:

SEC. 19.
 (a) (1) Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. The Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount of just compensation.
(2) Prior to the commencement of eminent domain proceedings, the public use for which the private property is taken shall be stated in writing.
(b) The State or a local government shall not acquire an owner-occupied residence by eminent domain for the purpose of conveying the real property to a private person.
(c) The State or a local government shall not acquire by eminent domain any real property on which a small business is operated, for the purpose of conveying the real property to a private person.
(d) Notwithstanding subdivision (c), real property that is within the area included in a comprehensive plan to eliminate blight and on which a small business is operated may be acquired by eminent domain for the purpose of conveying the property to a private person only if the small business owner is first provided a reasonable opportunity to participate in the plan. If the small business owner does not participate in the plan, the owner shall be paid reasonable relocation expenses or an amount not less than the fair market value of the small business, at the option of the small business owner. No payment made pursuant to this subdivision shall duplicate any other payment to which the small business may be entitled for the same purpose under law.
(e) (1) The State or a local government shall not acquire by eminent domain for conveyance to a private person any real property that is used exclusively by the owner for religious worship, if that property is exempt from property taxation pursuant to subdivision (f) of Section 3 of, or subdivision (d) of Section 4 of, Article XIII, or both.
(2) The State or a local government shall not acquire by eminent domain for conveyance to a private person any real property that is currently designated under a formal action of the owner’s governing body to be used by the owner exclusively for religious worship, if that formal designation was made at least one year prior to the date of the initial written offer from the State or local government to purchase the real property. The exemption set forth in this paragraph does not apply to real property that is so designated if, within five years following the date of that designation, the real property has not received an exemption from property taxation pursuant to subdivision (f) of Section 3 of, or subdivision (d) of Section 4 of, Article XIII.
(f) The State or a local government shall not acquire by eminent domain any real property in agricultural use for the purpose of conveying the real property to a private person.

(f)Subdivisions (b), (c), and (e)

(g) Subdivisions (b), (c), (e), and (f) do not apply if the stated public use is a public work or improvement. However, if property described in subdivision (b), (c), or (e) (e), or (f) is acquired by eminent domain for a public work or improvement, the owner from whom it was acquired shall have a reasonable opportunity to repurchase the property, in accordance with subdivision (h) (i), before its conveyance for a use other than a public work or improvement.

(g)

(h) When any private property was acquired by eminent domain for public use, and the State or local government determines that the property is no longer required for public use, the owner from whom the property was acquired shall have a reasonable opportunity to repurchase the property in accordance with subdivision (h) (i) before its conveyance by the State or a local government for other than a public use.

(h)

(i) The opportunity of the prior owner to repurchase the property shall be subject to all of the following:
(1) The State or local government shall use reasonable diligence to locate the former owner.
(2) The opportunity to repurchase shall be at the then current fair market value. However, if the property acquired by eminent domain was an owner-occupied residence, the opportunity to repurchase shall be at a price equal to the assessed value to be enrolled for the property under paragraph (3), increased by the fair market value of any improvements, fixtures, or appurtenances added by the State or local government.
(3) Upon reacquisition by the property owner from whom the property was acquired, the assessed value of the property shall be the value in the year of acquisition by the State or local government, adjusted as authorized by subdivision (b) of Section 2 of Article XIII A. If the property is reacquired by the property owner, then the acquisition by the State or local government, and the reacquisition by the property owner, shall not constitute a “change of ownership” for purposes of subdivision (a) of Section 2 of Article XIII A.
(4) The opportunity to repurchase applies only to the property owner from whom the property was acquired, and does not apply to any heirs or successors of the owner, or, if the owner was not a natural person, to an entity that ceases to legally exist. The opportunity to repurchase may be waived in writing.
(5) The Legislature may provide a procedure that constitutes a reasonable opportunity to repurchase, and may specify the contents of written notice of the opportunity to repurchase.

(i)

(j) For purposes of this section, the following terms have the following meanings:
(1) “Agricultural use” means the lawful use of land to grow or raise plant or animal products for commercial purposes, where that use, at the time the property in question was acquired by the owner, was consistent with applicable general plan and zoning requirements. For purposes of this paragraph, a legal nonconforming use shall not be deemed to be consistent with applicable general plan and zoning requirements.

(1)

(2) “Conveyance” means a transfer of real property, whether by sale, lease, gift, franchise, or otherwise.

(2)

(3) “Local government” means any city, including a charter city, county, city and county, school district, special district, authority, regional entity, redevelopment agency, or any other political subdivision within the State.

(3)

(4) (A) “Owner-occupied residence” means real property that is the owner’s principal place of residence for at least one year prior to the State or local government’s initial written offer from the State or local government to purchase the property and is improved with either of the following:
(i) A single family residence that is a detached home, condominium, or townhouse.
(ii) A duplex in which one of the two residential units is occupied by the owner.
(B) “Owner-occupied residence” also includes a residential dwelling unit attached to or detached from the single family residence, if the attached dwelling unit provides complete independent living facilities for one or more persons.

(4)

(5) “Person” means any individual or association, or any business entity, including, but not limited to, a partnership, corporation, or limited liability company.

(5)

(6) “Public work or improvement” means facilities or infrastructure for the delivery of public services such as education, police, fire protection, parks, recreation, emergency medical services, public health services, libraries, flood protection, streets or highways, public transit, railroads, airports and seaports, utilities, common carrier or other similar projects such as energy-related, communication-related, water-related and wastewater-related facilities or infrastructure, and projects identified by a State or local government for recovery from natural disasters.

(6)

(7) “Small business” means a business employing no more than the equivalent of 25 50 full-time employees, but does not include the owner of the real property that is acquired if the primary business of that owner is to lease the real property to others.

(7)

(8) “State” means the State of California and any of its agencies or departments.

(j)Subdivisions (b), (c), and (e)

(k) Subdivisions (b), (c), (e), and (f) do not apply when the State or a local government exercises the power of eminent domain for the purpose of protecting public health and safety; preventing serious, repeated criminal activity; responding to an emergency; or remedying environmental contamination that poses a threat to public health and safety.

Second—

 Paragraph (2) of subdivision (a) of, and subdivisions (b) to (j) (k), inclusive, of, Section 19 of Article I of the California Constitution, which would be added by this measure, do not apply to the acquisition of real property if the initial written offer to purchase the property was made on or before January 1, 2008, and a resolution of necessity to acquire the real property by eminent domain was adopted on or before December 31, 2008.

Third—

 The words and phrases used in paragraph (2) of subdivision (a) of, in subdivisions (b) to (h) (i), inclusive, of, and in subdivision (j) (k) of, Section 19 of Article I of the California Constitution, which would be added by this measure, and which would not be defined in subdivision (i) (j) of that section, shall be defined and interpreted in a manner that is consistent with the law in effect on January 1, 2007, and as that law may be amended or construed thereafter.

Fourth—

 Paragraph (2) of subdivision (a) of, and subdivisions (b) to (j) (k), inclusive, of, Section 19 of Article I of the California Constitution, which would be added by this measure, shall be liberally construed in furtherance of their intent to provide homeowners, small businesses, farms, and houses of worship with protection against exercises of eminent domain in which property is subsequently conveyed to a private person.

Fifth—

 The provisions of this measure are severable. If any provision of this measure or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.