Wall St. and Business Wednesdays: The Powerless Have Always Been Targets Of Eminent Domain by Steve Greenhut

Isn't that nice?

The city of Manhattan Beach is renaming an oceanfront park, Bruces' Beach, after Charles A. and Willa Bruce, an African-American couple who had purchased the land in 1912 and developed it into a beachfront resort in the 1920s.

The Bruces were driven off their land in the mid-1920s, according to a Los Angeles Times article last week, after city officials became uncomfortable with the idea of numerous black people sunbathing and dining at Bruces' Lodge. At the urging of the local community, the officials discovered a compelling public interest in creating a public park on that very spot, and they used the power of eminent domain to drive the couple away.

The land sat vacant for years, but the goal was accomplished – keeping "them" out of the neighborhood.

I'm pleased to see today's council members recognize the evil deed of their predecessors. But it's about 80 years too late for the couple. And I can't help but laugh at one sentence that will be inscribed on the plaque that will soon grace the park: "Those tragic circumstances reflected the views of a different time."

Certainly, racial views have changed, but the fundamental view that allowed the "public" to steal the Bruces' property has not changed. In fact, the times are worse now than they were then with regard to property rights.

In June 2005, the U.S. Supreme Court ruled in the now-infamous Kelo decision that governments have every right to take property from its current owners and give it to other private owners for virtually any reason at all. If city officials believe the new developer will pay more in sales tax than the old homeowners, then it's fair game. Back then, the city had to at least find a public purpose – i.e., a park – as a pretense for the theft. These days, if officials think a neighborhood is "blighted," then they can give the land to a developer for pennies on the dollar. Blight means anything that officials say it means.

While I haven't seen any instances where city officials state their goal of keeping blacks or Latinos or Asians out of a neighborhood, as happened with the Bruces in the 1920s, many of the neighborhoods targeted for the type of eminent domain the Supreme Court reviewed (private party to private party, so that cities can improve economic development or expand the tax base) happen to be minority neighborhoods.

"Cities use code words," explained Supervisor Chris Norby, a longtime foe of eminent domain abuse. "In the 1950s and 1960s, governments used the term 'urban renewal,' but critics knew that it was widely called 'Negro removal.' These days, we're looking at forced gentrification," as cities try to redevelop poorer areas into wealthy areas.

Norby reminded me of a case I covered in an unincorporated area outside Lake Elsinore, where county officials apparently didn't want older retirees and poorer people living on prime land near the lake.

Today's code words and attitudes may be different than they were in the 1920s, but by giving government so much power to drive people off their land, we all are subject to the whims and rationales of officials. In the 1920s, officials didn't think blacks were "appropriate" for the neighborhood, and these days officials don't want "working-class people" enjoying prime land that could be home to upscale condos.

The founders' idea of property rights was to provide a place where individuals could live their lives as they choose, without fear of intimidation by those who don't like them, for whatever reason.

That's why property rights are so important to the powerless. Former Justice Sandra Day O'Connor, in her stinging dissent in the Kelo case, got it right when she argued that the court has allowed a massive shift in power from the poor and working class to wealthy developers with enormous political power. The latter always will be protected because they have wealth and influence, whereas the former must depend on protections in the Constitution.

In the 1920s, black people had little political power and tenuous legal rights. If property rights had been protected for everyone, the Bruces would have been able to keep their dream alive. Today's mob uses different language and explanations for the takings they support – i.e., gentrifying neighborhoods, improving the tax base, fighting "blight," promoting New Urbanism – but the results are the same. The less powerful must give up their dreams to the more powerful.

Instead of building plaques on the many spots where city officials have destroyed people's lives by taking their land, their businesses or their houses, Californians ought to craft language that will protect future Bruces from government abuse. Last November, city officials and big developers did their part to stop Proposition 90, a statewide initiative that would have banned eminent domain abuse for nonpublic uses and also stopped the sort of regulatory takings that the city of Brea is engaging in against a group of Japanese property owners in the hillsides on the north end of town. There, the city is attempting to use a zoning change that would allow significantly fewer homes to be built, thus rendering hundreds of acres of private property nearly worthless so that those who already have their hillside homes can keep out others who want hillside homes.

Action is still needed. The Howard Jarvis Taxpayers Association has unveiled an initiative for the June 2008 ballot that would shut the door on most eminent domain abuses for private transfers. Unfortunately, the Jarvis group – which complained that Prop. 90 was not Kelo-only, but gummed up the works with a regulatory takings provision – has gummed up this proposal with a restriction on rent control. I hate rent control also, but it's unfortunate that the Jarvis group has chosen to risk this initiative in order to placate its apartment-owner base.

In response, the League of California Cities, one of the biggest advocates for the current eminent domain situation, is circulating its own initiative for the same ballot. Basically, the initiative does nothing. It protects only single-family homes from takings, and even those protections evaporate in the fine print. There are so many exceptions that the goal is clear: Give the public the sense that reform has passed without actually changing the way these cities do business. "It's Lent," says Pacific Legal Foundation attorney Timothy Sandefur. "During Lent, I always like to give up things I don't do anyway. Apparently, that's what the league is doing."

Meanwhile, the U.S. Supreme Court is considering a case that could be far more significant than Kelo in its impact on property rights. Oral arguments started last week in Wilkie v. Robbins, a Wyoming case in which federal officials engaged in blatant forms of harassment and abuse as a means to force a property owner to deed over an easement on his land. When the owner refused, federal officials "promised that [Frank]Robbins' refusal would 'come to war' and that they would give him a 'hardball education,'" wrote Sandefur, in a Legal Times article. "They cancelled his right of way over government-owned land, repeatedly harassed the guests at his ranch, cited him for minor infractions while letting similar violations by his neighbors go unnoticed, and brought him up on the criminal charges of interfering with federal agents during their duties."

Robbins sued, but the government insists that there is no constitutional right against government retaliation. It's up to the Supreme Court to decide. So while Californians try to piece together a few protections against wanton government takings through a new eminent-domain initiative next year, the Supreme Court might obliterate even more of the Constitution by granting the government a "right" to harass, abuse, retaliate and threaten property owners who don't give agents a piece of their land for no cost.

Are things really that different from the dark days of the 1920s, when officials harassed a couple off of their own resort?

Steve Greenhut is a Senior editorial writer and columnist for
The Orange County Register. Send him feedback at sgreenhut@ocregister.com. This article appears in The Orange County Register.

Steve Greenhut

Wednesday, March 28, 2007

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