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ACA-2 Eminent domain.(2007-2008)

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ACA2:v97#DOCUMENT

Amended  IN  Assembly  July 05, 2007
Amended  IN  Assembly  May 31, 2007

CALIFORNIA LEGISLATURE— 2007–2008 REGULAR SESSION

Assembly Constitutional Amendment
No. 2


Introduced  by  Assembly Member Walters, La Malfa
(Coauthor(s): Assembly Member Adams, Anderson, DeVore, Duvall, Fuller, Huff, Jeffries, Maze, Nakanishi, Strickland, Tran, Villines)
(Coauthor(s): Senator Aanestad, Ackerman, Battin, Cox, Harman, Hollingsworth, Wyland)

December 04, 2006


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 2, as amended, Walters. 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 prohibit the taking or damaging of private property without the express written consent of the owner for purposes of economic development, increasing tax revenue, or private use, or when the same use will be maintained following the taking. The measure would require that, prior to the commencement of eminent domain proceedings, the public use for which the property is to be taken be stated in writing. The measure would provide that a property owner’s acceptance of money deposited as the probable amount of just compensation does not prejudice the owner’s right to challenge the amount of compensation or whether the taking is for a private use. The measure would entitle a property owner to an award of attorney’s fees from the condemnor upon a court finding that the condemnor’s actions were not in compliance with the measure’s provisions. The measure would define “public use” for these purposes, and would permit the leasing of limited space for privately owned and operated business activity incidental to, and compatible with, the public work or improvement, subject to specified restrictions. The measure would permit private property to be taken to eliminate a specific, recurring, and ongoing threat to public safety, if certain conditions exist on each parcel to be taken, and pursuant to a certain process. The measure would provide that if property taken by eminent domain ceases to be used for the public use stated at the time of the taking, or fails to be put to that use within 10 years following the date of the taking, the former owner and heirs shall have the right to acquire the property at fair market value at the time of the reconveyance. The measure would provide that it applies to both new and pending projects that involve the exercise of the power of eminent domain, except if a resolution of necessity was adopted, as specified, prior to the effective date of the measure. The measure would except from the application of its provisions real property that is within a duly formed redevelopment project as of January 1, 2008, that has a specific connection with a military facility.

This measure would instead permit private property to be taken or damaged only for a stated public use and only when just compensation has been paid to, or into court for, the owner of the property. The measure would also prohibit, with respect to both new and pending eminent domain projects that involve the exercise of the power of eminent domain, a community redevelopment agency, community development commission, or joint powers agency created for the purpose of community redevelopment or community development that has the power of eminent domain from exercising that power to acquire any real property if ownership of the property will be transferred to a private party or private entity, unless the real property will be transferred to a public utility or the real property is within a duly formed redevelopment project area in the County of San Bernardino, as specified. The measure would also make related legislative findings and declarations.

Vote: 2/3   Appropriation: NO   Fiscal Committee: NOYES   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:

 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, and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. The Private property may not be taken or damaged without the express written consent of the owner for purposes of economic development, increasing tax revenue, or private use.
(2) Prior to the commencement of eminent domain proceedings, the public use for which the private property is to be taken shall be stated in writing.
(3) Private property shall not be taken or damaged without the express written consent of the owner when the same use will be maintained following the taking.
(4) 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. The owner’s acceptance of money deposited in court as the probable amount of just compensation shall not prejudice the owner’s right to challenge the amount of compensation, or to challenge the taking as being for a private use. A property owner shall be entitled to an award of attorney’s fees from the condemnor if the court finds that the condemnor’s actions are not in compliance with this section.
(b)  “Public use” means a public work or improvement providing for the construction and operation of facilities or infrastructure essential to the delivery of services to the general public which the public has a legally enforceable right to use, including government offices, education, police, fire protection, parks, emergency medical services, public health services, libraries, flood protection, streets or highways, public transit, railroads, airports and seaports; or other similar projects such as energy-related, communication-related, water-related and wastewater-related facilities or infrastructure; or for public utilities or common carriers.
(c) A public use may include leasing limited space for privately owned and operated business activity incidental to, and compatible with, the public work or improvement. However, no privately owned and operated business activity, or any combination or aggregation of these activities, shall constitute facilities or infrastructure essential to the delivery of public services, or be deemed a public use. The generation of tax revenues derived from privately owned and operated business activity, or any combination or aggregation of tax revenues derived from these activities, shall not be deemed a public use.
(d) (1) Private property may be taken to eliminate a specific, recurring, and ongoing threat to public safety, provided these conditions exist on each parcel to be taken. Before any property may be taken for these purposes, a superior court shall first determine by clear and convincing evidence that the facts and circumstances constituting the specific, recurring, and ongoing threat to public safety necessitating the property be taken actually exist, and the condemnor has undertaken reasonable efforts to locate and contact the property owner, and provided the property owner sufficient opportunity consistent with the public safety to remedy the conditions prior to the commencement of eminent domain proceedings.
(2) Nothing in this section shall restrict either legislative or administrative powers to take or damage private property under a declared state of emergency, and nothing in this section shall prohibit or limit the use of eminent domain to abate nuisances such as blight, obscenity, pornography, hazardous substances, or environmental conditions, provided all these condemnations are limited to abatement of specific conditions on specific parcels.
(e) When property taken by eminent domain ceases to be used for the public use stated at the time of the taking, or fails to be put to that use within 10 years following the date of that taking, the former owner and heirs shall have the right to acquire the property at fair market value at the time of the reconveyance. Notwithstanding subdivision (a) of Section 2 of Article XIII A, upon reacquisition, the property shall be appraised by the assessor for purposes of property taxation at its base year value, with any authorized adjustments, as had been last determined in accordance with Article XIII A at the time the property was acquired by the condemnor.
(f) The provisions of this section added by the amendment that added this subdivision added by the amendment adding this subdivision to this section shall apply to both new and pending projects that involve the exercise of the power of eminent domain, except that they shall not apply if a resolution of necessity with respect to that project was adopted pursuant to the requirements of Section 1240.040 of the Code of Civil Procedure, as that section read on January 1, 2007, and prior to the effective date of the amendment adding this subdivision to this section.
(g) The provisions of this section shall not apply to real property that is within a duly formed redevelopment project area as of January 1, 2008, if the real property is in direct proximity to, and contiguous with, a military facility or installation, or with a property that is contiguous with a military facility or installation closed pursuant to Public Law 100-526, the Defense Authorization Amendments and Base Closure and Realignment Act.

WHEREAS, The Legislature finds and declares all of the following:

(a)Current law recognizes that the closure of two or more military facilities within San Bernardino County has caused serious economic hardship in that county, including, but not limited to, the loss of jobs, increased unemployment, deterioration of properties, and land utilization, and undue disruption of people’s lives and activities.

(b)This measure addresses these conditions by permitting a community redevelopment agency, community development commission, or joint powers agency that has the power of eminent domain to acquire by eminent domain and transfer to a private party or private entity certain real property that is located in proximity to military facilities and installations closed pursuant to the provisions of Public Law 100-526, the Defense Authorization Amendments and Base Closure and Realignment Act; now therefor, be it.

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:

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

(a)Private property may be taken or damaged only for a stated public use and 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.

(b)Except as described in subdivision (d) and notwithstanding any other provision, a community redevelopment agency, a community development commission, or a joint powers agency created for the purpose of community redevelopment or community development that has the power of eminent domain shall not exercise the power of eminent domain to acquire any real property if ownership of the property will be transferred to a private party or private entity, other than a public utility as defined in Section 216 of the Public Utilities Code, as that section read on January 1, 2007.

(c)Subdivision (b) shall apply to both new and pending projects that involve the exercise of the power of eminent domain, except that it shall not apply if a resolution of necessity with respect to that project was adopted pursuant to the requirements of Section 1240.040 of the Code of Civil Procedure, as that section read on January 1, 2007, prior to the effective date of the amendment adding this subdivision. For purposes of this subdivision, a project involves the exercise of the power of eminent domain when an attempt is made to acquire a property if it is stated or otherwise implied that the property may be taken by eminent domain.

(d)Subdivision (b) shall not apply to real property that is within a duly formed redevelopment project area in the County of San Bernardino as of January 1, 2008, if the real property is in proximity to, as that term is defined by the Legislature, a military facility or installation closed pursuant to Public Law 100-526, the Defense Authorization Amendments and Base Closure and Realignment Act.