ACA 2 Assembly Constitutional Amendment

BILL NUMBER: ACA 2	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JULY 5, 2007
	AMENDED IN ASSEMBLY  MAY 31, 2007

INTRODUCED BY   Assembly Members Walters and La Malfa
   (Coauthors: Assembly Members Adams, Anderson, DeVore, Duvall,
Fuller, Huff, Jeffries, Maze, Nakanishi, Strickland, Tran, and
Villines)
   (Coauthors: Senators Aanestad, Ackerman, Battin, Cox, Harman,
Hollingsworth, and Wyland)

                        DECEMBER 4, 2006

   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


   ACA 2, as amended, Walters. Eminent domain.
   The California Constitution authorizes private property to be
taken or damaged for public use only when just compensation has been
paid to, or into court for, the owner of the property. 
   This measure would prohibit the taking or damaging of private
property without the express written consent of the owner for
purposes of economic development, increasing tax revenue, or private
use, or when the same use will be maintained following the taking.
The measure would require that, prior to the commencement of eminent
domain proceedings, the public use for which the property is to be
taken be stated in writing. The measure would provide that a property
owner's acceptance of money deposited as the probable amount of just
compensation does not prejudice the owner's right to challenge the
amount of compensation or whether the taking is for a private use.
The measure would entitle a property owner to an award of attorney's
fees from the condemnor upon a court finding that the condemnor's
actions were not in compliance with the measure's provisions. The
measure would define "public use" for these purposes, and would
permit the leasing of limited space for privately owned and operated
business activity incidental to, and compatible with, the public work
or improvement, subject to specified restrictions. The measure would
permit private property to be taken to eliminate a specific,
recurring, and ongoing threat to public safety, if certain conditions
exist on each parcel to be taken, and pursuant to a certain process.
The measure would provide that if property taken by eminent domain
ceases to be used for the public use stated at the time of the
taking, or fails to be put to that use within 10 years following the
date of the taking, the former owner and heirs shall have the right
to acquire the property at fair market value at the time of the
reconveyance. The measure would provide that it applies to both new
and pending projects that involve the exercise of the power of
eminent domain, except if a resolution of necessity was adopted, as
specified, prior to the effective date of the measure. The measure
would except from the application of its provisions real property
that is within a duly formed redevelopment project as of January 1,
2008, that has a specific connection with a military facility. 

   This measure would instead permit private property to be taken or
damaged only for a stated public use and only when just compensation
has been paid to, or into court for, the owner of the property. The
measure would also prohibit, with respect to both new and pending
eminent domain projects that involve the exercise of the power of
eminent domain, a community redevelopment agency, community
development commission, or joint powers agency created for the
purpose of community redevelopment or community development that has
the power of eminent domain from exercising that power to acquire any
real property if ownership of the property will be transferred to a
private party or private entity, unless the real property will be
transferred to a public utility or the real property is within a duly
formed redevelopment project area in the County of San Bernardino,
as specified. The measure would also make related legislative
findings and declarations. 
   Vote: 2/3. Appropriation: no. Fiscal committee:  no
  yes  . State-mandated local program: no.



    Resolved, by the Assembly, the Senate concurring, That the
Legislature of the State of California at its 2007-08 Regular Session
commencing on the fourth day of December 2006, 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)     (1)   
Private property may be taken or damaged for public use  , and
 only when just compensation, ascertained by a jury unless
waived, has first been paid to, or into court for, the owner.
 The   Private property may not be taken or
damaged without the express written consent of the owner for purposes
of economic development, increasing tax revenue, or private use.
 
   (2) Prior to the commencement of eminent domain proceedings, the
public use for which the private property is to be taken shall be
stated in writing.  
   (3) Private property shall not be taken or damaged without the
express written consent of the owner when the same use will be
maintained following the taking. 
    (4)     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.  The owner's acceptance of money deposited in
court as the probable amount of just compensation shall not prejudice
the owner's right to challenge the amount of compensation, or to
challenge the taking as being for a private use. A property owner
shall be entitled to an award of attorney's fees from the condemnor
if the court finds that the condemnor's actions are not in compliance
with this section.  
   (b)  "Public use" means a public work or improvement providing for
the construction and operation of facilities or infrastructure
essential to the delivery of services to the general public which the
public has a legally enforceable right to use, including government
offices, education, police, fire protection, parks, emergency medical
services, public health services, libraries, flood protection,
streets or highways, public transit, railroads, airports and
seaports; or other similar projects such as energy-related,
communication-related, water-related and wastewater-related
facilities or infrastructure; or for public utilities or common
carriers.  
   (c) A public use may include leasing limited space for privately
owned and operated business activity incidental to, and compatible
with, the public work or improvement. However, no privately owned and
operated business activity, or any combination or aggregation of
these activities, shall constitute facilities or infrastructure
essential to the delivery of public services, or be deemed a public
use. The generation of tax revenues derived from privately owned and
operated business activity, or any combination or aggregation of tax
revenues derived from these activities, shall not be deemed a public
use.  
   (d) (1) Private property may be taken to eliminate a specific,
recurring, and ongoing threat to public safety, provided these
conditions exist on each parcel to be taken. Before any property may
be taken for these purposes, a superior court shall first determine
by clear and convincing evidence that the facts and circumstances
constituting the specific, recurring, and ongoing threat to public
safety necessitating the property be taken actually exist, and the
condemnor has undertaken reasonable efforts to locate and contact the
property owner, and provided the property owner sufficient
opportunity consistent with the public safety to remedy the
conditions prior to the commencement of eminent domain proceedings.
 
   (2) Nothing in this section shall restrict either legislative or
administrative powers to take or damage private property under a
declared state of emergency, and nothing in this section shall
prohibit or limit the use of eminent domain to abate nuisances such
as blight, obscenity, pornography, hazardous substances, or
environmental conditions, provided all these condemnations are
limited to abatement of specific conditions on specific parcels.
 
   (e) When property taken by eminent domain ceases to be used for
the public use stated at the time of the taking, or fails to be put
to that use within 10 years following the date of that taking, the
former owner and heirs shall have the right to acquire the property
at fair market value at the time of the reconveyance. 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. 

   (f) The provisions of this section added by the amendment that
added this subdivision added by the amendment adding this subdivision
to this section shall apply to both new and pending projects that
involve the exercise of the power of eminent domain, except that they
shall not apply if a resolution of necessity with respect to that
project was adopted pursuant to the requirements of Section 1240.040
of the Code of Civil Procedure, as that section read on January 1,
2007, and prior to the effective date of the amendment adding this
subdivision to this section.  
   (g) The provisions of this section shall not apply to real
property that is within a duly formed redevelopment project area as
of January 1, 2008, if the real property is in direct proximity to,
and contiguous with, a military facility or installation, or with a
property that is contiguous with a military facility or installation
closed pursuant to Public Law 100-526, the Defense Authorization
Amendments and Base Closure and Realignment Act.  
   WHEREAS, The Legislature finds and declares all of the following:
   (a) Current law recognizes that the closure of two or more
military facilities within San Bernardino County has caused serious
economic hardship in that county, including, but not limited to, the
loss of jobs, increased unemployment, deterioration of properties,
and land utilization, and undue disruption of people's lives and
activities.
   (b) This measure addresses these conditions by permitting a
community redevelopment agency, community development commission, or
joint powers agency that has the power of eminent domain to acquire
by eminent domain and transfer to a private party or private entity
certain real property that is located in proximity to military
facilities and installations closed pursuant to the provisions of
Public Law 100-526, the Defense Authorization Amendments and Base
Closure and Realignment Act; now therefor, be it.  
   Resolved by the Assembly, the Senate concurring, That the
Legislature of the State of California at its 2007-08 Regular Session
commencing on the fourth day of December 2006, 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. 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.
   (b) Except as described in subdivision (d) and notwithstanding any
other provision, a community redevelopment agency, a community
development commission, or a joint powers agency created for the
purpose of community redevelopment or community development that has
the power of eminent domain shall not exercise the power of eminent
domain to acquire any real property if ownership of the property will
be transferred to a private party or private entity, other than a
public utility as defined in Section 216 of the Public Utilities
Code, as that section read on January 1, 2007.
   (c) Subdivision (b) shall apply to both new and pending projects
that involve the exercise of the power of eminent domain, except that
it shall not apply if a resolution of necessity with respect to that
project was adopted pursuant to the requirements of Section 1240.040
of the Code of Civil Procedure, as that section read on January 1,
2007, prior to the effective date of the amendment adding this
subdivision. For purposes of this subdivision, a project involves the
exercise of the power of eminent domain when an attempt is made to
acquire a property if it is stated or otherwise implied that the
property may be taken by eminent domain.
   (d) Subdivision (b) shall not apply to real property that is
within a duly formed redevelopment project area in the County of San
Bernardino as of January 1, 2008, if the real property is in
proximity to, as that term is defined by the Legislature, a military
facility or installation closed pursuant to Public Law 100-526, the
Defense Authorization Amendments and Base Closure and Realignment
Act.