# Amicus Curiae Brief — Kelo v. New London

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0031%3A20

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 469

## Text

No. 04-108

In The
Supreme Court of the Anited States

¢

SUSETTE KELO, THELMA BRELESKY,
PASQUALE CRISTOFARO, WILHELMINA AND
CHARLES DERY, JAMES AND LAURA GURETSKY,
PATAYA CONSTRUCTION LIMITED PARTNERSHIP
and WILLIAM VON WINKLE,

Petitioners,
v.

CITY OF NEW LONDON and
NEW LONDON DEVELOPMENT CORPORATION,

Respondents.

¢

On Writ Of Certiorari To The Supreme Court
Of The State Of Connecticut

«

~ BRIEF AMICUS CURIAE OF CALIFORNIA
REDEVELOPMENT ASSOCIATION
IN SUPPORT OF RESPONDENTS

¢

IRIs P. YANG*

T. BRENT HAWKINS

AMBER HYMAN

McDONOUGH HOLLAND & ALLEN PC
555 Capitol Mall 9th Floor
Sacramento, CA 95814-4692

(916) 444-3900

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Does the Takings Clause of the Fifth Amendment
forbid an economically distressed city from employing its
eminent domain power to condemn, and pay just compen-
sation for, private property in order to reverse decades of
economic decline, create thousands of jobs and signifi-
cantly increase property taxes and other sources of reve-
nue for the city, and to realize immediate structural and
environmental benefits for the city, as long as the proposed
condemnation is rationally related to the accomplishment
of those goals?

‘i
TABLE OF CONTENTS

in Page

INTEREST OF AMICUS CURIAE...............ccccseceeeeeeeees 1

SUMMARY OF ARGUMENT. ...............cccsccccsesssreeeeeeeees 2

ATRIBUTREIEIN cevececscecnscceseceseuseesesnsnnesneneiiainnninnnnnnnnnnnnn 3

I. The Condemnation of Non-Blighted Property
Within a Blighted Area Pursuant to an Adopted
Redevelopment Plan Is a Public Use ................. 3

A. Blight Is an Area Concept................:s0seeeeees 3

B. Requiring Parcel-By-Parcel Findings of
Blight Would Severely Undermine Cali-
fornia’s and Other States’ Urban Redevel-
En 5

II. As Demonstrated by California Community
Redevelopment Law, States Adopt Procedural
and Substantive Safeguards That Protect
Against Abuses of the Eminent Domain Power... 7

A. California’s Community Redevelopment
Law Contains Both Procedural and Sub-
stantive Provisions Designed to Protect
the Interests of Property Owners in Rede-
velopment Project Areas ..............ccsscseseeees 8

B. Courts Will Invalidate Takings That Vio-
late Legislatively Imposed Procedural and
Subotentire ee 11

CONC AIIIIN 000ccccrcsccccccesesescesenennsnnssieneniinsnininnnnnnnnnnn 15

ill

TABLE OF AUTHORITIES
Page
CASES
99 Cents Only Stores, Inc. v. Lancaster Redevelop-
ment Agency, 237 F.Supp. 2d 1123 (C.D. Cal.
2001), appeal dismissed and remanded, 60 Fed.
Ce 12
Aaron v. Target Corp., 357 F.3d 768 (8th Cir. 2004)......... 12
Barbara Beach-Courchesne v. City of Diamond Bar,
80 Cal. App. 4th 388, 95 Cal. Rptr. 2d 265 (Cal.
i csmasssssnnnnncs 12
Berman v. Parker, 348 U.S. 26 (1954) .0......ccccccceeeeeees passim
Charleston Urban Renewal Auth. v. Courtland Co.,
203 W. Va. 528, 509 S.E.2d 569 (1998) 00.0... ceeeeeeeeees 6

City of Las Vegas Downtown Redevelopment Agericy
v. Pappas, 76 P.3d 1 (2003), cert. denied, 124
sr rrssnnsmnnsonoconces 6

Cottonwood Christian Ctr. v. Cypress Redevelop-
ment Agency, 218 F. Supp. 2d 1203 (C.D. Cal.

ES LAG 12
Emmington v. Solano County, 195 Cal. App. 3d 491,
237 Cal. Rptr. 636 (Cal. App. 1st Dist. 1987)................ 12

Fellom v. Redevelopment Agency of San Francisco,
157 Cal. App. 2d 243, 320 P.2d 884 (Cal. App. Ist
a cererercrrccneenccensscscssneneseoocooees 5

Friends of Mammoth, et al. v. Town of Mammoth
Lakes Redevelopment Agency, 82 Cal. App. 4th
511, 98 Cal. Rptr. 2d 334 (Cal. App. 3d Dist.
TTD 13

Gonzales v. City of Santa Ana, 12 Cal. App. 4th
1335, 16 Cal. Rptr. 2d 132 (Cal. App. 4th
AE 10

iv

TABLE OF AUTHORITIES - Continued

Page
Graber v. City of Upland, 99 Cal. App. 4th 424, 121
Cal. Rptr. 2d 649 (Cal. App. 4th Dist. 2002)................. 13
In re Redevelopment Plan for Bunker Hill, 61 Cal.
8 GE, Sa ee Ce cnterteniemnsnentaniommninns 4
Redevelopment Agency v. Herrold, 86 Cal. App. 3d
1024, 150 Cal. Rptr. 621 (Cal. App. 5th Dist. 1978)....... 14
Redevelopment Agency v. Hayes, 122 Cal. App. 2d
777, 266 P.2d 105 (Cal. App. 1954).............:ccseceeeees 4,5,6

Redevelopment Agency v. Norm’s Slauson, 173 Cal.
App. 3d 1121, 219 Cal. Rptr. 365 (Cal. App. 2d
SI TE cccsrensecsntniniennittaneenininaninhennnidiaiiiianineiniiiuiaeiiiia 13, 14

Redevelopment Agency v. Rados Bros., 95 Cal. App.
4th 309, 115 Cal. Rptr. 2d 234 (Cal. App. 4th

Ee cncccseennstnenennaseneneoenensenssetcaninniassisinnindamineaiaiin 5, 8
Regus v. City of Baldwin Park, 70 Cal. App. 3d 968,
139 Cal. Rptr. 196 (Cal. App. 2d Dist. 1977)................. 12

Sigma Tau Gamma Fraternity House Corp. v.
Menomonie, 93 Wis. 2d 392, 288 N.W.2d 85 (Wis.

ITIP cccrenenninsunctusioenennnsiiiiiiuniinaiamamaniabibeiatiamimntaasiatiiamesiiatail 6
State v. Miami Beach Redevelopment Agency, 392

en; SG ls: Sete cccnciccnciennamnasenitsnensenintecaenmmmeniatninis 6
Sweetwater Valley Civic Assn. v. National City, 18

Cal. 3d 270, 133 Cal. Rptr. 859 (1976). .................0.. 9,11
Wilson v. Long Branch, 27 N.J. 360, 142 A.2d 837

GET ccnncveceninsmnnsianiansunnninnemneansameumensanimeneicsnddesimiminaiasiesiiieal 6

STATUTES, REGULATIONS AND RULES:
a, Gaee, B, G ae Be acrrrrnccnenatcrninnencniiiiiiiaiinntens 11
By | RS erenrore 13

TABLE OF AUTHORITIES -— Continued

Page
Cal. Civ. Proc. Code § 1246.236..............ccccccocosccscocccessessesees 11
Cal. Civ. Proc. Code § 1246.240.............ccccccccccccsccscsccesceseees 11
Ee 11
a re ee Pe eeniiinitnttennnnntntinennininnnitntis — >
Cal. Health & Safety Code § 33000-34160 ..................... 1,8
Cal. Health & Safety Code § 33031 ...000...........cccccccecceceeeeee 8
Cal. Health & Safety Code § 33036 ...............ccccceeeceeeeeeeeeees 4
Cal. Health & Safety Code § 33037(b) .0...........cceceeeeeeeeeeee 1
Cal. Health & Safety Code § 33321 .20............cccccecceceeeeeeeeees 5
Cal. Health & Safety Code § 33339 2000.00.00... ....ccccceeceeeeeeeees 10
Cal. Health & Safety Code § 33339.5..00..0.........ccccceeeeeeeeeee 10
Cal. Health & Safety Code § 33347.5..0..............cccccccceeeeeeees 9
Cal. Health & Safety Code § 33348 .000.........ccccccccecceeeeeeeeeees 9
Cal. Health & Safety Code § 33349 200.........cccccceeeeeeeeeeeeees 9
Cal. Health & Safety Code § 33350 oc eceeeeeeeeee 9
Cal. Health & Safety Code § 33360 2.000.000... eeeeeeeeee ee 9
Cal. Health & Safety Code § 33363 .00............cccccccceeseeeeeeees )
Cal. Health & Safety Code § 33365 ...0000........ceceeeeeeeeees 10
Cal. Health & Safety Code § 33366 .....................0cccceeeeeee 10
Cal. Health & Safety Code § 33367 .00............:ccccccccseeeeeeeeees 8
Cal. Health & Safety Code § 33373 .0.00.........cccccececeeeeeeeeees 10
Cal. Health & Safety Code § 33385 ..00.........:..cccecceeeeeeeeeee 9
Cal. Health & Safety Code § 33391 oo... cccccceeeeeeeeeees 1
Cal. Health & Safety Code § 33394 .00.0.........ccccceceeeeee 11, 14

TABLE OF AUTHORITIES - Continued

Page
Cal. Health & Safety Code § 33501 ....................ccccceeeeeeeee 10
U. S. Supreme Court Rule 37.6...................ccccceseseseeseeeseeeees 1
OTHER AUTHORITIES
2A Nichols on Eminent Domain § 7.06/27] (2004).............. 5

1

INTEREST OF AMICUS CURIAE

Amicus curiae California Redevelopment Association
(“CRA”) is a California nonprofit corporation whose mem-
bers include redevelopment agencies and private sector
firms and individuals interested in redevelopment in
California.’ Currently, 324 redevelopment agencies and
264 private sector firms are members of CRA. CRA’s
members are involved in carrying out redevelopment plans
throughout the state. California’s Community Redevelop-
ment Law (California Health & Safety Code §§ 33000 -
34160) was adopted in 1945. Since that time, approxi-
mately 414 cities and counties have established redevel-
opment agencies and have adopted approximately 772
redevelopment plans. All but a few of those redevelopment
plans authorize the use of eminent domain to acquire some
or all of the property within the redevelopment project
area in order to eliminate conditions of blight.’

e

’ All parties have given written consent to the filing of this brief and
copies of the consent letters are on file with the Clerk. Pursuant to
Supreme Court Rule 37.6, counsel for amicus curiae state that counsel for
the parties did not author this brief in whole or in part and no person or
entity, other than amicus curiae, its members, or its counsel, made a
monetary contribution to the preparation or submission of this brief.

* California redevelopment agencies are authorized to exercise the
power of eminent domain by California Health and Safety Code section
33391. The California legislature has declared it to be the policy of the
state: “That whenever the redevelopment of blighted areas cannot be
accomplished by private enterprise alone, without public participation
and assistance in the acquisition of land, in planning and in the
financing of land assembly, in the work of clearance, and in the making
of improvements necessary therefor, it is in the public interest to
employ the power of eminent domain, to advance or expend public
funds for these purposes, and to provide a means by which blighted
areas may be redeveloped or rehabilitated.” Cal. Health & Safety Code
§ 33037(b).

2

SUMMARY OF ARGUMENT

For the reasons set forth in Respondents’ Brie, CRA
firmly supports Respondents’ contentions that: (1) eco-
nomic development is a public use for which the power of
eminent domain may be constitutionally exercised, and (2)
there is no basis in the Constitution for applying a more
stringent standard of judicial review to takings for eco-
nomic development purposes.

Although the constitutional question presented by this
case does not appear to impact takings by redevelopment
agencies for the purpose of eliminating blight, CRA feels
impelled to call to the Court’s attention the serious impli-
cations that Petitioners’ arguments may have for takings
of non-blighted properties within blighted areas. Petition-
ers’ assertion that “there is nothing in the act of condemn-
ing non-blighted properties that constitutes a public
purpose” (Petitioners’ Brief at 26) overlooks this Court’s
holding in Berman v. Parker, 348 U.S. 26 (1954). Berman
clearly held that blight is determined on an area basis —
not a parcel-by-parcel basis — and that a blighted area may
include non-blighted properties which are necessary to
effectively redevelop the area as a whole. Moreover,
Berman held that the power of eminent domain may be
used to acquire non-blighted property within a blighted
area. This holding of Berman is critical to the ability of
redevelopment agencies to continue to deal effectively with
eliminating conditions of blight which threaten the physi-
cal, social and economic health of California’s communi-
ties.

3

ARGUMENT

I. The Condemnation of Non-Blighted Property
Within a Blighted Area Pursuant to an Adopted
Redevelopment Plan Is a Public Use

A. Blight Is an Area Concept

While Petitioners do not controvert that the removal
of blight is a public use, their assertion that “there is
nothing in the act of condemning non-blighted properties
that constitutes a public purpose” (Petitioners’ Brief at 26)
overlooks this Court’s holding in Berman that the concept
of blight applies to a redevelopment project area as a
whole and not to individual properties. Under Berman,
individual, parcel-specific determinations of blight are
unnecessary. Regardless of the character of the specific
parcel condemned, when the purpose of the agency's
conde \nation is blight removal in a designated redevel-
opment project area, the taking is for a public use. As this
Court explained:

Property may of course be taken for this re-
development which, standing by itself, is in-
nocuous and unoffending. But we have said
enough to indicate it is the need of the area as a
whole which Congress and its agencies are
evaluating. If owner after owner were permitted
to resist these redevelopment programs on the
ground that his particular property was not be-
ing used against the public interest, integrated
plans for redevelopment would suffer greatly.
The argument pressed on us is, indeed, a plea
to substitute the landowner’s standard of the
public need for the standard prescribed by Con-
gress. But as we have already stated, commu-
nity redevelopment programs need not, by force
of the Constitution, be on a piecemeal basis — lot

4

by lot, building by building. Berman, supra, at
35-36.

The public policy reasons for dealing with blight on an
area-wide basis have been explained in the legislative
findings accompanying the California Community Rede-
velopment Law. The California legislature has found that
“conditions of blight are chiefly found in areas subdivided
into small parcels, held in divided and widely scattered
ownerships, frequently under defective titles, and in many
such instances the private assembly of the land in blighted
areas for redevelopment is so difficult and costly that it is
uneconomic and as a practical matter impossible for
owners to undertake because of lack of the legal power and
excessive costs.” Cal. Health & Safety Code § 33036(c).

The conditions found in most urban centers make it
virtually impossible for a private developer acting without
the assistance of a redevelopment agency possessing the
power of eminent domain to assemble a site large enough
for modern development. Descriptions of these conditions
are found throughout California case law dealing with the
redevelopment of blighted areas. See, e.g., Redevelopment
Agency v. Hayes, 122 Cal. App. 2d 777, 782-84, 266 P.2d
105, 109-12 (Cal. App. 1954) (“Hayes”); and In re Redevel-
opment Plan for Bunker Hill, 61 Cal. 2d 21, 33-35, 45, 389
P.2d 538, 545-48, 553-54, (1964). Dealing effectively with
these conditions would be impossible if the owners of a few
non-blighted parcels within a redevelopment project area
could refuse to sell their property or hold a project hostage
by demanding an inflated price. (For a more detailed
discussion of the “hold-out problem” see Respondents’ Brief
at section II B.) For this reason, using the power of emi-
nent domain to acquire non-blighted property within a

5

redevelopment project area is critical to the success of
redevelopment efforts.

B. Requiring Parcel-By-Parcel Findings of
Blight Would Severely Undermine Cali-
fornia’s and Other States’ Urban Redevel-
opment Efforts

California’s Community Redevelopment Law permits
the condemnation of non-blighted parcels in a predomi-
nantly blighted area for the purpose of redevelopment.’
The authorizing statute provides that a project area may
include property which is not detrimental to the public
health, safety or welfare, but whose inclusion is necessary
for the effective redevelopment of the area. Cal. Health &
Safety Code § 33321. California courts have consistently
applied both this statute and the holding in Berman to
sustain the taking of non-blighted parcels in a designated
redevelopment project area. See Redevelopment Agency v.
Rados Bros., 95 Cal. App. 4th 309, 315, 115 Cal. Rptr. 2d
234, 239 (Cal. App. 4th Dist. 2001) (holding that the trial
court improperly applied a blight concept to the property
owner’s individual parcel) (“Rados Bros.”); Fellom uv.
Redevelopment Agency of San Francisco, 157 Cal. App. 2d
243, 247, 320 P.2d 884, 887 (Cal. App. 1st Dist. 1958)
(holding that California Redevelopment Law as applied to
non-slum-type blighted areas is constitutional); Hayes,

* See also 2A NICHOLS ON EMINENT DOMAIN § 7.06[27] n. 25 and 26
(2004) (listing the following states as finding that non-blighted proper-
ties may be taken to prevent slums and clean up blighted areas:
California, Connecticut, Illinois, Kentucky, Maine, Maryland, Massa-
chusetts, Minnesota, Mississippi, Missouri, Nevada, New York, North
Dakota, Ohio, Oregon, aa, Rhode Island, Virginia, Washing-
ton, and Wisconsin).

6

supra, 122 Cal. App. 2d at 800, 266 P.2d at 120 (holding
that California Redevelopment Law is constitutional as
applied to non-slum-type blighted areas or to undeveloped,
vacant land areas).

Requiring parcel-by-parcel findings of blight or impos-
ing a higher level of scrutiny on the taking of non-blighted
property in a redevelopment project area would severely
undermine state redevelopment efforts throughout the
country. Numerous states have followed this Court’s
holding in Berman and found that redevelopment of
blighted areas need not occur on a piecemeal basis. See
State v. Miami Beach Redevelopment Agency, 392 So. 2d
875, 889 (Fla. 1980) (holding that the condemnation of
buildings that do not contribute to the slum or blight of an
area is constitutional for the purpose of community blight
removal); City of Las Vegas Downtown Redevelopment
Agency v. Pappas, 76 P.3d 1 (2003), cert. denied, 124 S. Ct.
1603 (2004) (holding that redevelopment encompasses an
entire area, not just individually blighted sections); Wilson
v. Long Branch, 27 N.J. 360, 381, 142 A.2d 837, 849 (1958)
(“Denial of the right of the municipality to draw within a
blighted area certain houses or buildings which are in
good condition, would be in some instances to defeat the
overall legislative purpose, namely, the redevelopment of
blighted areas.”); Charleston Urban Renewal Auth. v.
Courtland Co., 203 W. Va. 528, 532, 509 S.E.2d 569, 573
(1998) (“ ... the issue is not whether an individual prop-
erty is ‘slum’ or ‘blighted’ property. The issue is whether an
‘area,’ typically composed of many individual parcels of
property, is a slum or blighted area.”); Sigma Tau Gamma
Fraternity House Corp. v. Menomonie, 93 Wis. 2d 392, 409,
288 N.W.2d 85, 92-93 (Wis. 1980) (“If the area in which
plaintiff’s property is located is blighted, and if the

7

acquisition of plaintiff’s property is reasonably necessary
for the elimination of that blight, then the city may law-
fully condemn plaintiff’s property, despite the fact that
that property itself has been properly maintained and is
presently in satisfactory condition.”).

II. As Demonstrated by California Community
Redevelopment Law, States Adopt Procedural
and Substantive Safeguards That Protect Against
Abuses of the Eminent Domain Power

State and local officials adopt procedural and substan-
tive safeguards that protect against abuses of the eminent
domain power. As envisioned under the separation of
powers doctrine, courts diligently enforce these provisions
and assure that local agencies heed these legislative
protections. These procedural and substantive constraints
balance the legitimate interests of local agencies to pursue
projects that enhance the general health and welfare of
the community with the private individual interests of
those affected by such projects. Because amicus is most
familiar and qualified to discuss California Redevelopment
Law, this section focuses on the constraints found on the
use of eminent domain in the California Community
Redevelopment Act. However, substantive and procedural
limits in varying forms are imposed in urban renewal
statues throughout the country.‘

* More pointedly, procedural and substantive constraints also
exist in Connecticut’s General Statutes controlling the exercise of
eminent domain for economic development. See Respondents’ Brief at
Summary of Facts and Section II B. (City of New London held
numerous neighborhood meetings before adopting the Municipal
Development Plan, the plan required specific details regarding the

(Continued on following page)

8

A. California’s Community Redevelopment
Law Contains Both Procedural and Sub-
stantive Provisions Designed to Protect
the Interests of Property Owners in Re-
development Project Areas

In recognition of the authority vested in redevelopment
agencies and the potential for the abuse of that authority,
the California Community Redevelopment Law contains
provisions designed to protect the interests of property
owners. In connection with the adoption of the redevelop-
ment plan, the elected legislative body is required to make
findings that the redevelopment project area is a blighted
area based on the existence of specifically identified condi-
tions of both economic and physical blight. Cal. Health &
Safety Code § 33367. Blight is rigorously defined as a
combination of enumerated conditions,» which are so
prevalent and so substantial that it causes a reduction of, or
lack of proper utilization of the area to such an extent that
it constitutes a serious physical and economic burden on the
community which cannot be expected to be reversed or
alleviated by private enterprise or governmental action, or
both, without redevelopment. Jd. § 33030.° Land does not
qualify as being blighted merely because it is not being put

needs for development and the benefits of the proposed plan and also
imposed both city and state oversight on development.)

* Such conditions include unsafe or abandoned buildings, high crime
rates, incompatible uses of adjacent properties, depreciated or stagnant
property values or impaired investments, abnormally high business
vacancies and a lack of necessary commercial facilities. Jd. § 33031;
Rados Bros., supra, 95 Cal. App. 4th at 314, 115 Cal. Rptr. 2d at 239.

* Additional findings that must be made include the necessity
of condemnation, economic feasibility of the redevelopment plan,
adequacy of the relocation plan, and the fact that the project area is
predominately urbanized. Jd. § 33367.

9

to its optimum use or may be more valuable for other uses.
Sweetwater Valley Civic Assn. v. National City, 18 Cal.3d
270, 277-78, 133 Cal. Rptr. 859, 863 (1976).

Procedural safeguards guide the redevelopment
process in general and the exercise of eminent domain in
particular. California law provides that both the redevel-
opment agency and legislative body conduct public hear-
ings prior to approving the redevelopment plan. Cal.
Health & Safety Code §§ 33348, 33360. If the redevelop-
ment plan would subject any property in the project area
‘9 acquisition by purchase or condemnation, the agency
™ 3st send a statement explaining this to each property
owner with the notice of hearing. Jd. § 33350. The descrip-
tion of the goals and objectives of the redevelopment plan
and notice of authority to condemn property, if any, must
be in non-technical, easily understood language. Id.
§§ 33349, 33350. Specific procedures must be followed if
written objections to the plan are submitted. The legisla-
tive body must address objections in detail and give
reasons for not accepting specified objections and sugges-
tions, using a good faith reasoned analysis in its response,
supported by factual information. Jd. § 33363.

If the proposed redevelopment plan contains the
authority to acquire residential property, and substantial
numbers of low- or moderate-income persons reside within
the project area, or the project will displace a substantial
number of people, an independently elected “project area
committee” including representatives of property owners
must review the redevelopment plan prior to its adoption
and make a recommendation to the legislative body. Id.
§§ 33347.5, 33385. If the project area committee recom-
mends against adoption of the redevelopment plan, the

10

redevelopment plan may only be adopted by an extraordi-
nary majority vote of the legislative body. Id. § 33366.

The ordinance adopting the redevelopment plan and
the validity of the findings and conclusions of the legisla-
tive body must be supported by substantial evidence in the
record of proceedings and are subject to legal challenge
and referendum. Cal. Health & Safety Code §§ 33501,
33365; Gonzales v. City of Santa Ana, 12 Cal. App. 4th
1335, 1343-45, 16 Cal. Rptr. 2d 132, 137-38 (Cal. App. 4th
Dist. 1993).

After the redevelopment plan is adopted, the agency
must record in the land records of the county in which the
redevelopment project is situated, a description of the land
within the project area and a statement that proceedings
for the redevelopment of the project area have been
instituted. Jd. § 33373. Purchasers of property in the
redevelopment project area after the redevelopment plan
is adopted are thereby given constructive notice that the
property they are acquiring may be subject to acquisition
by eminent domain for redevelopment purposes.

Each redevelopment plan is required to “provide for
participation in the redevelopment of property in the
project area by the owners of all or part of such property if
the owners agree to participate in the redevelopment in
conformity with the redevelopment plan... .” Jd. § 33339.
Redevelopment agencies must also extend reasonable
preferences to persons engaged in business in the project
area to reenter in business within the redeveloped area if
they otherwise meet the requirements prescribed by the
redevelopment plan. Jd. § 33339.5.

Before a redevelopment agency may condemn prop-
erty, it must make every reasonable effort to acquire the

11

property voluntarily, including having the property ap-
praised and offering to purchase the property for not less
than the appraised fair market value. Cal. Gov't Code
§§ 7267.1, 7267.2. If the property owner refuses the
redevelopment agency’s offer, before proceeding to con-
demnation the agency must adopt a resolution declaring
the public use and necessity of the taking. Cal. Civ. Proc.
Code § 1245.220. The property owner must receive notice
of the adoption of this “resolution of necessity” and have
an opportunity to appear and refute the required findings.
Id. § 1245.235. The resolution of necessity may only be
adopted by a vote of two-thirds of all the members of the
governing body. Id. § 1245.240.

Finally, an agency is prohibited from acquiring prop-
erty to remain in its current condition merely to effect a
change in ownership. Cal. Health & Safety Code § 33394.

This detailed statutory scheme has built a substantive
and procedural fence around the use of eminent domain by
redevelopment agencies that provides an extraordinary
level of protection to property owners from the abuse of
that power.

B. Courts Will Invalidate Takings That Vio-
late Legislatively Imposed Procedural
and Substantive Safeguards

Courts enforce the legislative protections discussed
above. Courts have rejected redevelopment plans where
there is no substantial evidence in the record that the
project area is predominately blighted. See Sweetwater
Valley, supra, 18 Cal. 3d at 278-79, 133 Cal. Rptr. at 864
(finding that the property in a redevelopment project area,
which included a golf course and vacant land, was neither

12

an economic nor a social liability substantiating a finding
of blight); Regus v. City of Baldwin Park, 70 Cal. App. 3d
968, 139 Cal. Rptr. 196 (Cal. App. 2nd Dist. 1977) (record
failed to show project area was blighted); Emmington v.
Solano County, 195 Cal. App. 3d 491, 497-98, 237 Cal.
Rptr. 636, 640 (Cal. App. 1st Dist. 1987) (courts role is to
ensure that the factors to be considered in determining
whether an area is blighted are taken into account and not
just “rubber stamp” local government findings.)’

For example, in Barbara Beach-Courchesne v. City of
Diamond Bar, 80 Cal. App. 4th 388, 95 Cal. Rptr. 2d 265
(Cal. App. 2d Dist. 2000) the court concluded that the
proposed redevelopment project failed to establish blight
due to a lack of substantial supporting evidence in the
administrative record. The court held that in order to
establish blight, reports must discuss specific defects in
specific parcels and not just recite the statutory language.

” Two Federal District Court cases cited by Petitioners, 99 Cents
Only Stores, Inc. v. Lancaster Redevelopment Agency, 237 F. Supp. 2d
1123 (C.D. Cal. 2001), appeal dismissed and remanded, 60 Fed. Appx.
123 (9th Cir. 2003) and Cottonwood Christian Ctr. v. Cypress Redev.
Agency, 218 F.Supp. 2d 1203 (C.D. Cal. 2002) made an “end run”
around state condemnation procedures, probably based in part on a
perception that property owners would fare better in federal court on
challenging a right to take. (Petitioners’ Brief at 14, 16.) Both cases
involved redevelopment agencies’ condemnation of allegedly non-
blighted property within a redevelopment project area and rested in
part on allowing a challenge to the agencies’ determinations of blight.
In both cases, the district courts expressly declined to address the
blight findings made pursuant to California Redevelopment Law and
neither case cited nor acknowledged the holding in Berman permitting
the taking of non-blighted properties for the purpose of redevelopment.
Compare these cases with Aaron v. Target Corp., 357 F.3d 768 (8th Cir.
2004) holding that the district court abused its discretion when it
declined to abstain and permit a state eminent domain action to go
forward.

13

Recently, in Graber v. City of Upland, 99 Cal. App. 4th
424, 121 Cal. Rptr. 2d 649 (Cal. App. 4th Dist. 2002) the
court reinforced earlier precedent finding inadequate
evidence of blight and criticized the use of overbroad
definitions which prevented the city council from deter-
mining whether the project area could truly be character-
ized as having the blight conditions required by statute.*

Similarly, in Redevelopment Agency v. Norm’s Slauson,
173 Cal. App. 3d 1121, 219 Cal. Rptr. 365 (Cal. App. 2d
Dist. 1985), the court rejected a resolution of necessity
where the contents of the resolution were affected by a
gross abuse of discretion by the legislative body.’ In Norm’s
Slauson, the court found that the adoption of the resolu-
tion of necessity to acquire the property for a redevelop-
ment project was a “sham” because the city had already
irrevocably committed itself to condemnation of the parcel.
Id. at 1127, 219 Cal. Rptr. at 369. Prior to the hearing on
whether the city council should adopt’ the resolution of
necessity, the agency had contracted to sell the property
and issued bonds to finance development (without notify-
ing the property owner). Id. at 1127, 219 Cal. Rptr. at 369.

* See also Friends of Mammoth, et al. v. Town of Mammoth Lakes
Redevelopment Agency, 82 Cal. App. 4th 511, 98 Cal. Rptr. 2d 334 (Cal.
App. 3d Dist. 2002) (rejecting a redevelopment plan on the grounds that
the project did not meet the predominantly urbanized requirement).

* Aresolution of necessity to condemn a particular piece of property
must contain the following four findings: (1) the public interest and
necessity require the project; (2) the project is planned or located in the
manner that will be most compatible with the greatest public good and
the least private injury; (3) the property sought to be acquired is
necessary for the project; and (4) the agency has made the offer of just
compensation required by Government Code section 7267.2 or the offer
was not made because the owner could not be found with reasonable
diligence. Cal. Civ. Proc. Code § 1245.230.

14

The court explained that before a local legislative body
determines that it is necessary to take a particular parcel
of property, it must “conduct a fair hearing and make its
determinations on the basis of evidence presented in a
judicious and nonarbitrary fashion.” Jd. at 1129, 219 Cal.
Rptr. at 370.

In Redevelopment Agency v. Herrold, 86 Cal. App. 3d
1024, 150 Cal. Rptr. 621 (Cal. App. 5th Dist. 1978) the
court held that the 60-day statute of limitations to chal-
lenge a redevelopment plan did not bar a claim alleging
illegal implementation of the plan. At issue was whether
the agency violated section 33394 of the Health and Safety
Code which prohibits a redevelopment agency from taking
property that will remain in the same condition merely to
effect a change in ownership. The court overruled the trial
court’s determination that the claim was time-barred. The
court explained, “[the statute of limitations] cannot be
used to immunize an agency which adopts a redevelop-
ment plan legal on its face, then after the 60-day period
has elapsed deviates from its resolved purpose and seeks
to violate the public use requirement of [the] California
Constitution. .. .” Jd. at 1029, 150 Cal. Rptr. at 625.

As evidenced by the above, while courts give great
deference to legislative declarations of public use, they
enforce the procedural and substantive safeguards that
protect against abuses of the eminent domain power. This
separation of powers provides the proper balance between
legislative findings of public use that authorize the exer-
cise of eminent domain to implement comprehensive
redevelopment projects benefiting the general health and
welfare of the community, while at the same time ensuring

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15

judicial protection of individual property interests should
an agency misuse such authority.

¢

CONCLUSION

For the reasons set forth above, CRA urges this Court
to re-affirm its holding in Berman that non-blighted
property located within a blighted area may be taken by
eminent domain in order to alleviate conditions of blight
which exist in the area as a whole and reject any standard
of review that would impose the need for parcel-by-parcel
determinations of blight.

Respectfully submitted,

IrIs P. YANG*

T. BRENT HAWKINS

AMBER HYMAN

McDONOUGH HOLLAND & ALLEN PC
555 Capitol Mall 9th Floor
Sacramento, CA 95814-4692

*Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0031%3A20. Public record. Not legal advice.