Empowerment in Eminent Domain Disputes and Litigation: A Community-Lawyering ApproachEmpowerment in Eminent Domain Disputes and Litigation: A Community-Lawyering ApproachTarisai Kuvhenguhwa, University of California, San Diego, Urban Studies and Planning ProgramTarisai Kuvhenguhwa, University of California, San Diego, Urban Studies and Planning Program

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Eminent domain, the government’s state power to legally take private property for public use, has remained a controversial subject since its inception.

However, the manner in which these civil disputes are tried, challenged, and litigated have proved even more divisive; especially when private developers have approached redevelopment agencies (of local governments) to assist them in acquiring land that is already possessed by a home- or local business-owner.

The Kelo v. New London (2005) Supreme Court decision, which expanded the power’s usage, incited a public backlash across the country that led to many misconceptions and misgivings surrounding the redevelopment machine employing this power.

However, California, as well as over 40 other states, have created statutes intended to limit eminent domain abuses and overuses

Much of the frustration in these cases emanated from a lack of understanding the procedures involved, their rights as private property owners and members of a community, and the government’s legal obligations (and restrictions) in these situations

Research Methods

Spatial dimension: the central, downtown San Diego metropolitan area over the last 10 years

Interviewed: 2 eminent domain attorneys, a city attorney, a civil trial judges, an urban planner (Redevelopment Agency), 2 law school professors, former government employees (a relocation officer, who also served as Executive Director of the SD Redevelopment Agency; and an Urban Studies & Planning professor, who was also a former Executive Director and played a major role in redevelopment projects downtown)

Watched over 80 archived city council meetings: Land Use & Housing and Ah Hoc Redevelopment Agency committees (2005-2012) for community perspectives

Does an increased amount of community mobilization (on the part of the private property owners), coupled with more open pathways of communication and input between legal representatives and these

clients, result in more satisfactory case resolutions?

1. Allen, Tom, D. Benjamin Barros, Carole Necole Brown, Eric R. Claeys, Rachel D. Godsil, Robin Paul Malloy, Marc R. Poirier, David Simunovich, James Charles Smith, and Michael Allen Wolf. Private Property, Community Development, and Eminent Domain. Edited by Robin Paul Malloy. Burlington: Ashgate Publishing Company, 2008. 2. Dominguez, David. “Getting Beyond Yes to Collaborative Justice: The Role ofNegotiation in Community Lawyering.” Georgetown Journal on Poverty Law & Policy 12, no. 1 (Spring 2005): 55.3. Fleck, Robert K., and F. Andrew Hanssen. “Repeated adjustment of delegated powers andthe history of eminent domain.” International Review of Law and Economics 30, no. 2 (June 2010): 99-111. Economy of Urban Development.” California Law Review 95, no. 5 (October 2007): 1999-2072. 5. Garnett, Nicole Stelle. “The Neglected Political Economy of Eminent Domain.” MichiganLaw Review 105, no. 1 (October 2006): 102-150. 6. Harris, Angela, Margaretta Lin, and Jeff Selbin. “From ‘The Art of War’ to ‘Being Peace’: Mindfulness and Community Lawyering in a Neoliberal Age.” California Law Review 95, no. 5 (October 2007): 2073-2132.7. Lehavi, Amnon and Amir N. Licht. “Eminent Domain, Inc.” Columbia Law Review 107, no. 7 (Nov., 2007): 1704-1748.8. Miceli, Thomas J. and Kathleen Segerson. The Economics of Eminent Domain: PrivateProperty, Public Use, and Just Compensation. Hanover: now Publishers, 2007. 9. Nadler, Janice and Shari Seidman Diamond. “Eminent Domain and the Psychology ofProperty Rights: Proposed Use, Subjective Attachment, and Taker Identity.” Journal of Empirical Legal Studies 105, no. 4 (December 2008): 713-749.10. Wall, James A., John B. Stark, and Rhetta L. Standifer. “Mediation: A Current Reviewand Theory Development.” The Journal of Conflict Resolution 45, no. 3 (June 2001): 370-391.11. Background image source: http://www.voiceofsandiego.org/clipboard/article_cf859c68-3259-11e1-bd39-0019bb2963f4.html

Resources

When property owners are better informed of the process (which includes their rights), maintain realistic expectations of potential resolutions, and work together with attorneys in a more equal partnership (esp. when the dispute effects more than one individual), this combination of engaged activity can contribute to more satisfactory outcomes.

Therefore, this inquiry concluded that there can be a connection between increased client satisfaction (based upon what the property owners’ objectives are), and increased property-owning, community member engagement.

Even though the nature of my project exposed itself to differing experiences among the interview subjects, some common perspectives did emerge from the individuals I interviewed, despite their differing professions and work environments.

PAC’s (Project Area Committees, composed of elected community members to liaise between the community-at-large and the redevelopment agency) that have their own legal counsel, may prove to be a fruitful, large-scale case study of community-oriented lawyering.

Table 1. Notable Findings

Proponents of community-oriented lawyering wondered if they “inevitably disempower their clients in the process of representation itself,” when employing the traditional “directive” model (i.e. clients assume a more passive role, while the legal representatives make most of the decisions on how to proceed with less input from them)

Harris et al. found that in addition to their “role translating community ideas into legal arguments, the presence of lawyers can confer legitimacy on a community struggle” when confronting a government entity claiming to be acting out of the interests of the public community when seeking private property

Community-oriented lawyering encourages a more equal partnership: with more open pathways of communication and creating a dynamic that encourages and effectively empowers clients to be able to advocate for themselves, and potentially even their collective community, in the future

There was very little academic literature that focused specifically on how attorneys approach eminent domain and redevelopment cases with their community member clients.

This study was aimed at investigating the nature of the attorney-client advocacy approach and process during eminent domain disputes, in an effort to unearth factors that may or may not contribute to a more satisfactory (and thus more successful, in the eyes of the property owner) case outcome.

I interviewed eminent domain attorneys who represented the city government and private property owners in land assembly disputes, regarding Petco Park’s construction (early 2000’s).

Photo by author.

Existing Literature

Background

March 15, 2012