SACRAMENTO, Calif. — California lawmakers increasingly complain about the past abuses of eminent domain — the government’s ability to take property by force provided it affords due process and pays just compensation, per the Takings Clause. Yet they refuse to rein in that power. In the last legislative session, lawmakers even made it easier for local governments to use eminent domain in new and questionable ways. It’s a head scratcher.
I have railed against the misuse of eminent domain for years. But the Legislature has shrugged at the issue, rediscovering it recently only in the context of its racial justice agenda. Lawmakers aren’t wrong that takings sometimes have an ugly racial component, but their failure to see this as a broader property rights issue makes their recent efforts ineffective and hypocritical.
I was encouraged in 2023 when the Legislature discovered the injustice of a 1925 taking by the city of Manhattan Beach. Upset by the existence of a beachfront resort that catered to African Americans, the city condemned the property based on officials’ claim that they needed to build a public park. They paid the owners a pittance. Nearly a century later, Gov. Gavin Newsom signed Senate Bill 796, which gave the land back to the descendants, who then sold it to Los Angeles County.
In the last session, Newsom vetoed a bill to provide restitution for other racially motivated uses of eminent domain. His veto message said the proposed new civil rights agency would lack “the crucial expertise and immense resources required to successfully implement this bill.” But no one embraced the obvious approach: Pass anti-eminent-domain protections for everybody.
Eminent domain abuse has often targeted minorities. I reported on such instances in my 2004 book, Abuse of Power: How the Government Misuses Eminent Domain. Dodger Stadium is built on Chavez Ravine, the site of an egregious taking. Photographs of the removal of the mostly Latino residents are heartbreaking more than six decades later.
In 2005, the U.S. Supreme Court in its Kelo decision greenlit New London, Connecticut’s taking of the Fort Trumbull neighborhood for a corporate headquarters. Justice Sandra Day O’Connor’s dissent is stirring: “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.… [T]he government now has license to transfer property from those with fewer resources to those with more.”
Justices, however, implored the states to reform their eminent domain laws. Many did, but California’s reform was superficial, and was backed by interest groups that advocate loose eminent domain laws. Instead of reining in those powers, Newsom and the Legislature have incrementally expanded them.
Newsom this year signed Assembly Bill 417, which is mostly an unobjectionable updating of codes relating to local infrastructure financing and investment authorities. But the underlying law grants them the power to “acquire real property by eminent domain, provided that authority is exercised within 12 years from the adoption of the plan.” The Legislature rejected efforts to specifically restrict eminent domain powers.
Newsom also signed Assembly Bill 893, which makes it easier for California state universities to build campus housing. It’s a good idea to reduce building regulations to help them, but those universities have eminent domain powers and the bill doesn’t limit their use. And, again, the Legislature refuses to revise its post-Kelo eminent domain laws, as other states have done.
Historically, eminent domain had been legally confined to projects such as highways, courthouses, and government-owned infrastructure. Governments sometimes overstep their bounds even for these legitimate projects. But most people — including our founders — recognized it as a necessary evil for genuine “public uses.” That’s especially true for freeways and railroads that require the acquisition of long ribbons of land.
Beginning in the late 1940s, however, the nation embarked on an aggressive urban renewal push that involved tearing down urban slums and replacing them with modern housing projects. American Spectator readers surely are aware of the disaster that ensued. The names of since-demolished, crime-ridden dystopian housing blocks are still widely recognizable: Cabrini Green (Chicago), Pruitt-Igoe (St. Louis), and Jordan Downs (Watts).
During the same era, California created redevelopment agencies, which are locally controlled state agencies that use tax-increment financing (TIF). They sometimes have different names in other states, but RDAs use eminent domain to acquire property, then grab the growth in property taxes following the completion of the project. Cities use the “increment” to pay the debt incurred to finance the projects.
These agencies were designed to combat urban blight, but cities — even relatively new ones that lacked rundown neighborhoods — learned they could declare virtually anything blighted, then condemn the property and hand it to a developer who was promising to build a project favored in city hall. Many suburban California cities used their takings power to create auto malls, hotels, and shopping centers that would fill their coffers via discretionary sales tax revenue.
In 2012, Gov. Jerry Brown and the Legislature eliminated redevelopment agencies, mainly for financial reasons, as RDAs diverted funds from the state budget in the midst of a deficit. That reduced the incentive for municipalities to invoke eminent domain, but they still misuse it. For instance, the San Francisco Board of Supervisors has been trying to use this takings power to acquire land for an affordable housing project.
The Legislature’s goal should be to restrict eminent domain to genuine public uses per the Constitution, which will protect the rights of Californians from all ethnic backgrounds. The Institute for Justice’s latest report gives California a “D” grade for its eminent domain laws. Instead of simply revisiting century-old eminent domain abuses, California lawmakers ought to protect against future abuses. But that would require serious legislating rather than politically correct posturing.
Steven Greenhut is Western region director for the R Street Institute. Write to him at [email protected].
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