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HomeMy WebLinkAboutAgenda Report - March 29, 2006 C-01 SMAGENDA ITEM C -I CITY OF LODI COUNCIL COMMUNICATION AGENDA TITLE: Joint Meeting of the Lodi City Council and Redevelopment Agency to Discuss and Provide Direction to Staff Regarding Introduction of Ordinance to Limit Lodi's Use of Eminent Domain (through the City of Lodi or the Redevelopment Agency) to Acquisition Property that will be put to a Municipal Use. MEETING DATE: March 29,2006 Special Joint Meeting of Lodi City Council and Redevelopment Agency PREPARED BY: City Attorney RECOMMENDED ACTION: Discuss prospect of disabling City and the Redevelopment Agency from engaging in Eminent Domain for purpose of sale to a private party and provide direction to Staff as appropriate. BACKGROUND INFORMATION: Council directed staff to present a proposed ordinance restricting the use of eminent domain. A draft is attached. The drafl is based on a bill (SCA 15 as most recently amended) pending in the California Legislature with some significant modifications in order to address the concerns that staff perceives with the bill. I have also attached a version reflecting how SCA 15 has been amended as it was passed through the legislature. SCA 15 requires that all property that is taken by Eminent Domain be used exclusively by a public entity. The exclusive use provisions have recently been amended to allow rentals to non-profit entities. Previously it only allowed exceptions for entities regulated by the PUC and for minor incidental uses such as news racks and shoeshine stands. SCA 15 requires that any property that ceases its exclusive public use be offered back to the original owner at its current market price. There are several examples of private uses of Lodi government property that would have been caught up in SCA 15's former restrictions. Had the city used its condemnation powers to acquire Hutchins Street Square (Lodi Memorial Hospital's Adult and Youth Day Care Programs), Blakely Park (Boys and Girls Club), the parking structure (commercial space), the New Shanghai building (Lodi Adopt A Child), the Parks and Recreation Annex building (Jazzercise classes), any park facility (BOBS use, birthday party rentals, scouting groups), it would have been required to sell the property back to the original owner at the original purchase price. It is important to note that many of these facilities were not originally contemplated to be put to a private but never the less public benefit use. However, over time these uses came to be perceived as a higher and better use. For that reason, I have made a provision for a sunset date upon which a change in use would no longer require a reverter to the original property owner. This change insures that the property is not taken for a sham public purpose but still allows flexibility as the Council's perception of the greatest public benefit changes over time. FISCAL IMPACT None FUNDING AVAILABLE Not Applicable ev abauer, Attor ey APPROVED: / Blair King, City Manager SCA 15 JULY 13, 2005 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 SCA 15, as amended, McClintock Eminent domain: condemnation proceedings. The California Constitution authorizes governmental entities to take or damage private property for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. It also authorizes the Legislature to provide for possession by the condemnor following commencement of the eminent domain proceedings upon deposit in court, and prompt release to the owner, of the money determined by the court to be the probable amount of the just compensation. This measure would laeeneldmtien provide that private property may be taken or damaged --by eminent eleF Rin j______e'irg_ only for a stated public use evieleneethat the ee Lc has pLcemsen that ne Leasenable—altevye emdmsts . The measure would also require that the property be owned and occupied by the condemnor, except as specified, and used only for the stated public use. This measure would also provide that if the property ceases to be used for the stated public use, the former owner f or a beneficiary or an heir who has been designated for this purpose, would have the right to reacquire the property for its fair market value , whi:eheveLc is les., before the property may be otherwise sold or transferred. This measure would further require a county assessor, upon property being so reacquired, to appraise that property for purposes of property taxation at its adjusted base year value as had been last determined at the time the property was acquired by the condemnor. Vote: 2/3. Appropriation: no. Fiscal committee: yes. State -mandated local program: no. WHEREAS, This measure shall be known and may be cited as "The Homeowner and Property Protection Act"; and WHEREAS, Eminent domain has been subject to widespread abuse in California, whereby local governmental entities have condemned property and transferred it, by sale, lease, or otherwise, to the control, management, or exploitation of private entities for private use and profit on the theory that generalized public benefits will flow therefrom; and WHEREAS, The United States Supreme Court, in Kelo v. City of New London, U.S. (2005), has held that the United States Constitution does not prevent the transfer of property, seized through eminent domain, to private entities for private profit; and WHEREAS, The rights guaranteed in the California Constitution are not dependent on rights guaranteed under the United States Constitution (Section 24 of Article I of the California Constitution), and the California Constitution should protect the property rights of Californians to a greater degree than does the United States Constitution; nor should the term "public use" in the California Constitution be construed as identical to that phrase as 1 employed in the Fifth Amendment to the United States Constitution; and WHEREAS, It is the intent of the Legislature that private property shall not be taken or damaged for the use, exploitation, or management of any private party, including, but not limited to, the use, exploitation, or management of property taken or damaged by a corporation or other business entity for private profit, as is currently permitted under the United States Constitution under Kelo v. City of New London, U.S. (2005); and WHEREAS, It is not the intent of this amendment to prevent the rental of space in a government building or any other government-owned property for incidental commercial enterprises, including, but not limited to, gift shops, newsstands, eLl .sheeskdmnestanels shoeshine stands, and private nonprofit entities such as churches and other religious and civic organizations ; and WHEREAS, This amendment shall apply only to condemnation actions that are completed after this amendment goes into effect; now, therefore, be it Resolved by the Senate, the Assembly concurring, That the Legislature of the State of California at its 2005-06 Regular Session commencing on the sixth day of December 2004, 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. Private property may not be taken or damaged for private use. .st-at-eel jaub-lre useepenl_..} juel --=- 1eteL- d:nat-=--- n +eevdmel nee that the—e6 La has }1`-6__,,.vcrrzhiat 3e rea56-nable alternative—exists . PLae..,.Laty taken by fai n (b) Property taken by eminent domain shall be owned and occupied by the condemnor , or another gover nmental agency utilizing the property for the stated public use by agreement with the condemnor, or may be leased only to entities that are regulated by the Public Utilities Commission. All property that is taken by eminent domain shall be used only for the stated public use. (c) If any property taken through eminent domain after the effective date of this subdivision ceases to be used for the stated public use, the former owner of the property or a beneficiary or an heir, if a beneficiary or heir has been designated for this purpose, shall have the right to reacquire the property for the fair market value of the property , w-t3ieheveLa is less, before the property may be otherwise sold or transferred. 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. (d) 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 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LODI AMENDING TITLE 15, "BUILDINGS AND CONSTRUCTION" OF THE LODI MUNICIPAL CODE BY ADDING CHAPTER 15.72 RELATING TO EMINENT DOMAIN BE IT ORDAINED BY THE LODI CITY COUNCIL AS FOLLOWS: SECTION 1. Title 15, "Buildings and Construction," of the Lodi Municipal Code is hereby amended by adding thereto Chapter 15.72 relating to Eminent Domain and shall read as follows: WHEREAS, this mtee Ordinance shall be known and may be Gated as "The Homeowner and Property Protection Ordinance"; and WHEREAS, Eminent Domain has been subject to wid ead abuse in California, whereby local governmental entities have condemned property and transferred it, by sale, lease, or otherwise, to the control, management, or exploitation of private entities for private use and profit on the theory that generalized public benefits will flow therefrom; and WHEREAS, the United States Supreme Court, in Kelo v. City of New London, U. S. (2005), has held that the United States Constitution does not prevent the transfer of property, seized through eminent domain, to private entities for private profit; and WHEREAS, it is the intent of the I=egislafuFe Lodi City Council that private property shall not be taken or damaged for the use, exploitation, or management of any private party, including, but not limited to, the use, exploitation, or management of property taken or damaged by a corporation or other business entity for private profit, as is currently permitted under the United States Constitution under Kelo v. City of New London, U.S. (2005); and WHEREAS, it is not the intent of this am ;t Ordinance to prevent the rental of space in a government building or any other government-owned property for incidental commercial enterprises, including, but not limited to, gift shops, newsstands, ^F `;h„oc,h;Ae ewe, and private nonprofit entities such as churches and other religious and civic organizations; and WHEREAS, this ^^ eRdme;t Ordinance shall apply only to condemnation actions that are completed after this Ordinance goes into effect. (a) Property taken by eminent domain by the City of Lodi shall be owned and occupied by the condemnor or another governmental agency utilizing the property for the stated public use by agreement with the condemnor, or may be leased only to entities that are regulated by the Public Utilities Commission or to private nonprofit entities. All property that is taken by eminent domain shall be used only for the 6ta:ed a public use or as set forth above. (b) If any property taken through eminent domain after the effective date of this Ordinance AGR ceases to be used for the stated public use, within [insert time framel years of its original acquisition, the former owner of the property or a beneficiary or an heir, if a beneficiary or heir has been designated for this purpose, shall have the right to reacquire the property for the fair market value of the property, before the property may be otherwise sold or transferred. (c) SECTION 2 - No Mandatory Duty of Care. This ordinance is not intended to and shall not be construed or given effect in a manner which imposes upon the City, or any officer or employee thereof, a mandatory duty of care towards persons or property within the City or outside of the City so as to provide a basis of civil liability for damages, except as otherwise imposed by law. SECTION 3. All ordinances and parts of ordinances in conflict herewith are repealed insofar as such conflict may exist. SECTION 4. This ordinance shall be published one time in the "Lodi News Sentinel," a daily newspaper of general circulation printed and published in the City of Lodi, and shall be in force and take effect thirty days from and after its passage and approval. Approved this day of , 2006. SUSAN HITCHCOCK Mayor Attest: SUSAN J. BLACKSTON City Clerk State of California County of San Joaquin, ss. I, Susan J. Blackston, City Clerk of the City of Lodi, do hereby certify that Ordinance No. was introduced at a Special Joint meeting of the Lodi City Council and Redevelopment Agency of the City of Lodi held March 29, 2006, and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council held , 2006, by the following vote: AYES: COUNCIL MEMBERS — NOES: COUNCIL MEMBERS — ABSENT: COUNCIL MEMBERS — ABSTAIN: COUNCIL MEMBERS — I further certify that Ordinance No. was approved and signed by the Mayor on the date of its passage and the same has been published pursuant to law. Approved as to Form: D. STEPHEN SCHWABAUER City Attorney 2 SUSAN J. BLACKSTON City Clerk ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LODI AMENDING TITLE 2, "ADMINISTRATION AND PERSONNEL" OF THE LODI MUNICIPAL CODE BY ADDING CHAPTER 2.52.020 RELATING TO EMINENT DOMAIN ------------------------------------------------------------------------ ------------------------------------------------------------------------ BE IT ORDAINED BY THE LODI CITY COUNCIL AS FOLLOWS: SECTION 1. Title 2, "Administration and Personnel," of the Lodi Municipal Code is hereby amended by adding thereto Chapter 2.52.020 relating to Eminent Domain and shall read as follows: WHEREAS, this mtee Ordinance shall be known and may be Gated as "The Homeowner and Property Protection Ordinance; and WHEREAS, Eminent Domain has been subject to wi d^9v,aespreac abuse in California, whereby local governmental entities have condemned property and transferred it, by sale, lease, or otherwise, to the control, management, or exploitation of private entities for private use and profit on the theory that generalized public benefits will flow therefrom; and WHEREAS, the United States Supreme Court, in Kelo v. City of New London, U. S. (2005), has held that the United States Constitution does not prevent the transfer of property, seized through eminent domain, to private entities for private profit; and WHEREAS, it is the intent of the I=egislafuFe Lodi City Council that private property shall not be taken or damaged for the use, exploitation, or management of any private party, including, but not limited to, the use, exploitation, or management of property taken or damaged by a corporation or other business entity for private profit, as is currently permitted under the United States Constitution under Kelo v. City of New London, U.S. (2005) by the Redevelopment Agency; and WHEREAS, it is not the intent of this ^m ;t Ordinance to prevent the rental of space in a government building or any other government-owned property for incidental commercial enterprises, including, but not limited to, gift shops, newsstands, ^" ch��c hin� stands, and private nonprofit entities such as churches and other religious and civic organizations; and WHEREAS, this a^,a,,,eRdFRe;t Ordinance shall apply only to condemnation actions that are completed after this Ordinance goes into effect. (a) Property taken by eminent domain by the Redevelopment Agency of the City of Lodi shall be owned and occupied by the condemnor or another governmental agency utilizing the property for the stated public use by agreement with the condemnor, or may be leased only to entities that are regulated by the Public Utilities Commission or to private nonprofit entities. All property that is taken by eminent domain shall be used only for t"r�,e 6tated a public use or as set forth above. (b) If any property taken through eminent domain after the effective date of this Ordinance ivosie+; ceases to be used for the stated public use, within [insert time framel years of its original acquisition, the former owner of the property or a beneficiary or an heir, if a beneficiary or heir has been designated for this purpose, shall have the right to reacquire the property for the fair market value of the property, before the property may be otherwise sold or transferred. (c) SECTION 2 - No Mandatory Duty of Care. This ordinance is not intended to and shall not be construed or given effect in a manner which imposes upon the City, or any officer or employee thereof, a mandatory duty of care towards persons or property within the City or outside of the City so as to provide a basis of civil liability for damages, except as otherwise imposed by law. SECTION 3. All ordinances and parts of ordinances in conflict herewith are repealed insofar as such conflict may exist. SECTION 4. This ordinance shall be published one time in the "Lodi News Sentinel," a daily newspaper of general circulation printed and published in the City of Lodi, and shall be in force and take effect thirty days from and after its passage and approval. Approved this day of , 2006. SUSAN HITCHCOCK Mayor Attest: SUSAN J. BLACKSTON City Clerk State of California County of San Joaquin, ss. I, Susan J. Blackston, City Clerk of the City of Lodi, do hereby certify that Ordinance No. was introduced at a Special Joint meeting of the Lodi City Council and Redevelopment Agency of the City of Lodi held March 29, 2006, and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council held , 2006, by the following vote: AYES: COUNCIL MEMBERS — NOES: COUNCIL MEMBERS — ABSENT: COUNCIL MEMBERS — ABSTAIN: COUNCIL MEMBERS — I further certify that Ordinance No. was approved and signed by the Mayor on the date of its passage and the same has been published pursuant to law. Approved as to Form: D. STEPHEN SCHWABAUER City Attorney 2 SUSAN J. BLACKSTON City Clerk