The Volokh Conspiracy - Ineffectual Eminent Domain "Reform" in California:

California Governor Arnold Schwarzenegger recently signed into law five almost completely ineffectual post-Kelo eminent domain reform laws. Tim Sandefur of the Pacific Legal Foundation has a series of excellent posts that explain in detail why these laws do almost nothing to curb eminent domain abuse in California (here is the first of his five posts).

Unfortunately, as I have explained here, here, and here, the enactment of post-Kelo reform laws that look impressive to the public, but actually achieve nothing, is all too common. Indeed, several of the subterfuges in the new California legislation could have been taken right off my list of "Common Problems in Post-Kelo Reform Legislation." A particularly serious problem in the California law is the fact that local governments are still permitted to condemn "blighted" property under a definition of blight that is broad enough to encompass almost any neighborhood. As I explain in a recent Legal Times article, this pitfall is one that bedevils post-Kelo reforms efforts in many states.

Quoting myself is rarely a good idea. But what I said in June about President Bush's equally vacuous executive order on takings also applies to the new California laws:

Bogus reform efforts such as this one create a danger that the public will be falsely persuaded that the problem has been solved; indeed, I suspect that in some cases that is part of their purpose . . . Sometimes, a bogus reform is worse than no reform at all.

Finally, I do have a minor quibble with Tim's analysis of Senate Bill 1650, the one part of the new California legislative package that he concludes may have "some actual teeth." This Bill requires that condemned land "only be used for the public use stated in the resolution unless the governing body...adopts a resolution authorizing a different use...by a vote of at least two-thirds of all members of the governing body." As Tim explains, the purpose of this provision is to prevent the use of bait-and-switch tactics under which the government can justify a condemnation in court by claiming a legally unassailable public use and then turn around and use the property for more dubious purposes.

I agree that Bill 1650 provides a marginal increase in protection for property owners. However, these kinds of abuses are to a large extent already forbidden by the Kelo decision, where the Supreme Court reiterated the longstanding rule that the government is "no[t] . . . .allowed to take property under the mere pretext of a public purpose, when [the] actual purpose was to bestow a private benefit." Kelo v. City of New London, 125 S.Ct. 2655, 2662 (2005). Bill 1650 provides a very small increment of added protection for property rights (it apparently covers sincere as well as purely pretextual changes in the use of condemned property), but basically it merely codifies the rule against pretextual takings contained in Kelo and earlier Supreme Court cases. In any event, given the very broad range of condemnations permitted under California law (including in the blight provisions of the new legislation noted above), local governments won't have to resort to pretexts in order to condemn any property they want for virtually any purpose.

	[Ilya Somin, September 29, 2006 at 8:19pm] Trackbacks Ineffectual Eminent Domain "Reform" in California: California Governor Arnold Schwarzenegger recently signed into law five almost completely ineffectual post-Kelo eminent domain reform laws. Tim Sandefur of the Pacific Legal Foundation has a series of excellent posts that explain in detail why these laws do almost nothing to curb eminent domain abuse in California (here is the first of his five posts). Unfortunately, as I have explained here, here, and here, the enactment of post-Kelo reform laws that look impressive to the public, but actually achieve nothing, is all too common. Indeed, several of the subterfuges in the new California legislation could have been taken right off my list of "Common Problems in Post-Kelo Reform Legislation." A particularly serious problem in the California law is the fact that local governments are still permitted to condemn "blighted" property under a definition of blight that is broad enough to encompass almost any neighborhood. As I explain in a recent Legal Times article, this pitfall is one that bedevils post-Kelo reforms efforts in many states. Quoting myself is rarely a good idea. But what I said in June about President Bush's equally vacuous executive order on takings also applies to the new California laws: Bogus reform efforts such as this one create a danger that the public will be falsely persuaded that the problem has been solved; indeed, I suspect that in some cases that is part of their purpose . . . Sometimes, a bogus reform is worse than no reform at all. Finally, I do have a minor quibble with Tim's analysis of Senate Bill 1650, the one part of the new California legislative package that he concludes may have "some actual teeth." This Bill requires that condemned land "only be used for the public use stated in the resolution unless the governing body...adopts a resolution authorizing a different use...by a vote of at least two-thirds of all members of the governing body." As Tim explains, the purpose of this provision is to prevent the use of bait-and-switch tactics under which the government can justify a condemnation in court by claiming a legally unassailable public use and then turn around and use the property for more dubious purposes. I agree that Bill 1650 provides a marginal increase in protection for property owners. However, these kinds of abuses are to a large extent already forbidden by the Kelo decision, where the Supreme Court reiterated the longstanding rule that the government is "no[t] . . . .allowed to take property under the mere pretext of a public purpose, when [the] actual purpose was to bestow a private benefit." Kelo v. City of New London, 125 S.Ct. 2655, 2662 (2005). Bill 1650 provides a very small increment of added protection for property rights (it apparently covers sincere as well as purely pretextual changes in the use of condemned property), but basically it merely codifies the rule against pretextual takings contained in Kelo and earlier Supreme Court cases. In any event, given the very broad range of condemnations permitted under California law (including in the blight provisions of the new legislation noted above), local governments won't have to resort to pretexts in order to condemn any property they want for virtually any purpose.