What Is Eminent Domain?

Can the Government Take Private Property?

Justice. Judge hammer on the table | Credit: Yeko Photo Studio

Q:  Marsha, I’ve been following Santa Barbara city’s use of eminent domain in a property in the 2700 block of De la Vina. Is this legal? How can a governmental agency simply condemn and take private property?

A:  As strange as it sounds, it is legal and is in fact part of the United States Constitution. Eminent domain is the legal right of a government to take private property for public use. This governmental power was established in the Constitution’s original Bill of Rights. It is known as the “takings clause” in the Fifth Amendment, which also states “…nor shall private property be taken for public use, without just compensation.” The takings clause states the government may use this power only when it benefits the public. It’s the just compensation language that creates the bulk of the disputes and lawsuits over eminent domain.

Eminent domain and our current definition of this clause have been honed by decades of legal actions. What is “public use,” and what defines “just compensation?” The writers of our Constitution left these concepts vague. This has allowed the clause to evolve and be defined by the times in which it is utilized.

In Santa Barbara, recent use of eminent domain has concerned public safety and waterways. The use of eminent domain with the De la Vina properties involves Mission Creek and public safety. Sadly, most of the time, Mission Creek is dry. However, when it rains, and Mission Creek is raging, it can be extremely hazardous.

There are numerous bridges that cross Mission Creek on the creek’s journey to the Pacific Ocean. The City Council voted on May 17 to start eminent domain seizure of four properties in the 2700 block of De la Vina. The century-old bridges on upper De la Vina are not safe and need to be replaced for the public good.

Mission Creek has been the focus of the Santa Barbara City Council for some time. In a November 2014 article in the Santa Barbara Independent, Nick Welsh reported that in 2009, the city of Santa Barbara entered negotiations with Virginia Castagnola-Hunter to begin construction on her waterfront property, formerly the family-owned Lobster House restaurant. This involved the building of a new Cabrillo Boulevard bridge across Mission Creek. By 2014, the City voted to start eminent domain procedures to acquire the property. The negotiations were stalled over the fair price and compensation issue. While waiting for the value question to be resolved, the owner permitted the bridge construction project to start.

Unfortunately, there are examples when governments did not use taken property for the public good.

In the 1950s, Los Angeles seized Chavez Ravine from a community of about 1,800 rural and mostly low-income Latino families. The Chavez Ravine families made up a community of homeowners, churches, stores, and parks. The city said they wanted to utilize a federally funded urban renewal project and build low-income public housing. The evicted families were promised first pick of the apartments. This never happened, and the families had to search for their own housing.

Chavez Ravine was razed to the ground and all residents were removed. For a variety of political reasons, the public housing was never built. The vacant land was eventually sold to the Dodgers; Dodger Stadium occupies Chavez Ravine today. Even at that time, there was considerable public resistance to the private use purchase. Many argued that the seized land had to be for public use, such as a zoo or a park.

Hopefully, today’s checks and balances on the right of eminent domain work to prevent such governmental abuses.

Marsha Gray has worked in Santa Barbara real estate for more than 25 years. She works at Allyn & Associates, where she helps her clients buy and sell homes and with lending services. To read more of Marsha’s Q&A articles, visit MarshaGraySBhomes.com. Contact Marsha at (805) 252-7093 or MarshaGraySB@gmail.com.


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