Posted on 08/14/2005 10:05:37 PM PDT by WayneLusvardi
Do School Districts Get Away with Eminent Domain Double Jeopardy?
by Wayne Lusvardi
The Story of King Ahab's Taking of a Vineyard
"Now Naboth the Hezreelite had a vineyard in Nezreel,beside the palace of Ahab king of Samaria. And after this Ahab said to Naboth, ?Give me your vineyard that I may have it for a vegetable garden, because it is near my house; and I will give you a better vineyard for it; or, if it seems good to you, I will give you its value in money.' But Naboth said to Ahab, ?The Lord forbids that I give you the inheritance of my fathers.' Ahab was sullen and vexed. He told his wife Jezebel, about the incident. ?And Jezebel his wife said to him, ?Do you now govern Israel?...I will give you the vineyard of Naboth the Jezreelite.' So she wrote letters in Ahab's name and sealed them with his seal, and she sent the letters to the elders and the nobles who dwelt with Naboth in his city. And she wrote in the letters, "Proclaim a fast, and set Naboth on high among the people; and set two base fellows opposite him, and let them bring a charge against him saying, ?You have cursed God and the king. Then take him out and stone him to death.' Then the men did as Jezebel told them to do. When Naboth was dead, Ahab and Jezebel went down to the vineyard to take possession of it.'" (Hebrew Bible, I Kings 21)[1].
In the above ancient Biblical story of King Ahab's taking of a vineyard, a landowner lost both his property and his life. In modern day California, is it possible for a property owner to lose both his property and the wealth of his property, even to the point of taking highly valuable property for no compensation whatsoever?
Eminent domain statutes in California potentially allow school districts to get away with something like double jeopardy when firstly they physically take private property for public school sites; and secondly reduce just compensation court awards for the costs to clean up phantom environmental contamination that often pose only a perceived health hazard either to the public or to future school children.
In response to decades of environmental regulation of so-called toxic waste sites in California, the following amendment to the California Code of Civil Procedure governing eminent domain was adopted that requires the remediation of hazardous substances on property to be acquired by school districts.
Sec. 1263.720: Presence of Hazardous Substance-Required Action.
(a) Upon petition of any party to the proceeding, the court in which the proceeding is brought shall specially set for hearing the issue of whether any hazardous substance is present within the property to be taken.
(b) If the court determines that any hazardous substance is present within the property to be taken, the court shall do the following:
(1) Identify those measures constituting the required action with regard to the hazardous substance, the probable cost of the required action, and the party that shall be designated by the court to cause the required action to be performed.
(2) Designate a trustee to monitor the completion of the required action and to hold funds, deducted from amounts otherwise to be paid to the defendant pursuant to this title, to defray the probable cost of the required action.
(3) Transfer to the trustee funds necessary to defray the probable cost of the required action from amounts deposited with the court..
Sec. 1263.740: Appraising Property - Presence of Hazardous Substance Not To be Considered. The presence of any hazardous substance within a property shall not be considered in appraising the property, for purposes of Section 1263.720.
The law provides that property owners and school districts can seek to separate the contamination issue from the property valuation issue in two separate court actions. School districts typically take the approach that contamination affects the value of the property and should be tried in one combined action. Conversely, property owners may desire to have a separate hearing to determine the contamination issue first because they may believe that contamination is minimal, nonexistent, or bogus. A critical factor in any such separate court action to determine contamination issues is whether statutory legal rules of evidence must comply with scientific standards of proof or only have to comply with mere subjective testimony by so-called expert witnesses.
A problem in California is that toxic tort (harm) court cases can be determined under legal evidence standards that do not conform to the scientific method. Although about one half of the states in the U.S. have adopted more rigorous scientific standards in such cases (called "Daubert" standards), California and other big liberal states such as New York and Illinois, have retained a more porous standard (called "Frye" standards).
The mere listing of some substance as an environmental contaminant by the state does not always reflect proven science of actual potential harm. This has recently been shown with the dropping of perchlorate from the Proposition 65 list of chemicals known to the State of California to cause cancer, birth defects or other reproductive harm (see http://www.freerepublic.com/focus/f-bloggers/1463269/posts). Another example is the requirement to clean up water wells in Southern California which have an infinitesimal six parts per billion of perchlorate while replacement treated water from the Colorado River Aqueduct contains the same level of perchlorate! As Aaron Wildavsky documents in his book "But Is It True?" no illness, not even a cold, can properly be attributed to the thousands of so-called toxic waste sites in the U.S.[2]
With the pendulum of the public opinion and the law swinging back to strengthening property rights against abuses of eminent domain law, it might behoove legislators in California to consider tightening up existing court evidentiary standards to assure that just compensation awards for taking of private property for school sites are not unjustly reduced for phantom environmental hazards based on junk science. Property owners should not be subject to eminent domain double jeopardy for having blasphemed the modern day god of environmentalism.
FYI - See post: Do school district get away with eminent domain double jeopardy?
Just wait until you see charges for government removal of weeds as a biological contaminant, union labor, safety procedures, and all.
They'll send you a bill.
Oh come on, you people are so heartless!
ITS FOR THE KIDS!!!!!!!!
/s
Thanks for the ping!
Is it common for school districts to use eminent domain?
Just wondering how often this happens.
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