Willow Glen Resident

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Potential ballot measure would limit state's power to apply eminent domain

By Monica Heger

Brian and Diana Padilla of San Jose live the American dream. They own their home and their welding business, all on the same property.

Then in 2001 they received a letter from the San Jose Redevelopment Agency saying their block of Ryland Avenue near downtown had been slated for high-density housing. Their options: sell their property or have it taken by eminent domain.

"The first thing I said to Brian, was 'This can't be legal,' " Diana Padilla recalled.

But, to their surprise, it was perfectly legal. Since the property they own is in a redevelopment area, the city has the power of eminent domain. This means that if the redevelopment agency believes the property is in need of development improvements, it can negotiate for the sale of the property and, if the owner refuses, the agency can simply take the property.

Refusing to sell without a fight, the Padillas organized protests outside of San Jose City Hall and put signs in front of their property, stating, "Not for sale by owner," including the phone number for the redevelopment agency.

The city eventually backed off, but the Padillas believe it is only a matter of time before the issue returns. That's why they have joined a group that hopes to get an initiative on the November ballot that will limit the state's power of eminent domain. To do that, they have started a grassroots cyber-campaign through the website www.limiteminentdomain.org, and are attempting to collect 800,000 signatures by the end of April.

Lorraine Wallace-Rowe, the chairperson for the Coalition for Redevelopment Reform, the driving force behind the initiative, was involved in the same struggle in 2001 as the Padillas. She was able to save her property near St. James Park, which the redevelopment agency had slated for high-density housing.

"We all thought eminent domain was for public use," she said. "But over the years there was an evolution of eminent domain to the point that it became used for anything that was for economic benefit. And any single- family home is not worth as much as high-rise condos."

The initiative seeks to prohibit the use of eminent domain for anything other than public use. According to Rose Garden resident Yolanda Reynolds, another supporter of the initiative, public use is the true intent of eminent domain.

"This initiative reasserts the original intent of eminent domain is to build a roadway, hospital or school, but not for the financial gain of another individual," Reynolds said.

From the redevelopment agency's side, Harry Mavrogenes, executive director of the San Jose Redevelopment Agency, said eminent domain, "when carefully and judiciously used, can be an effective tool to improve the neighborhood or an area."

"It's a tool of last resort," he added. "We try to work with the owners as much as possible."

However, Wallace-Rowe disagrees.

"It's the last resort just as the robber with the gun's last resort is to shoot you if you don't hand over the money," she said.

A group of Connecticut residents unsuccessfully challenged the law last June. The U.S. Supreme Court ruled that local governments may force property owners to sell, even to make way for private economic development, if officials decide the project would benefit the public.

Mavrogenes said over the last four years the redevelopment agency has acquired 119 parcels in San Jose. Of these, 30 were acquired through a friendly sale, and five were acquired through unfriendly sales before filing for eminent domain. The agency filed for eminent domain on 84 parcels, but 81 of those owners settled. Three parcels were acquired by a final judgment of eminent domain.

Mavrogenes said more and more, the redevelopment agency is trying to work with property owners.

"We now have far more owner-participation agreements in redevelopment areas than we've had in the past," he said.

In owner-participation agreements, Mavrogenes said the redevelopment agency contributes a certain amount of money and requires the owner to make certain improvements, allowing the owner to keep the property and improve the area.

Mavrogenes cited the Tropicana shopping center on King and Story roads as a successful collaboration between the redevelopment agency and the owner. The backers of the initiative to limit eminent domain use the Tropicana center as an example of why eminent domain should be limited.

"In a roundabout way, it showed that the system worked," Mavrogenes said. "The owner went to court and he won. Now we're working with them."

However, what happened at Tropicana shopping center is not the norm. According to Wallace-Rowe, Dennis Fong, the owner of Tropicana, spent more than $1 million in legal fees fighting the redevelopment agency.

"Most of us can't afford that," she said.

For more information about the initiative, visit www.limiteminentdomain.org. For more information about the redevelopment agency, visit www.sjredevelop ment.org.