Notes From Babel

The Phantom Limb of Kelo

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Nossaman’s California Eminent Domain Report links this story about citizen outrage over a slated redevelopment plan in the city of Placentia.  The irony is that, apparently, the city does not have the power to condemn property for private redevelopment.  This story vindicates what I previously wrote with respect to the use of eminent domain for private redevelopment—that the repugnance of the practice would lead to unthinking citizen objection to even legitimate and needed redevelopment.  In other words, Kelo v. New London‘s holding that the Constitution permits takings for private redevelopment has led to citizens revolting against their cities’ redevelopment efforts, even if their cities are don’t have the power to do what Kelo otherwise allows.  It reminds me of stories of amputees who report feeling pain in “phantom limbs”:  there’s nothing causing the pain, but it hurts anyway.

But I disagree that there’s nothing to fret:  the lack of authority is not much of a reason to expect a city not to violate its citizens’ property rights.  Case in point, back in 2007, while working with John Eastman—now California Attorney General candidate—and The Claremont Institute Center for Constitutional Jurisprudence, I appeared before the San Diego Planning Commission to explain why federal law forbade the Rancho Bernardo Planning Board (“Planning Board”) from denying the Grace Church of North County a conditional use permit (“CUP”) to continue using their place of worship.  The Planning Board had decided they had enough churches, and considered the denial of the CUP an easy decision.  They insisted that, like the members of the Planning Board, businesses near the church were probably annoyed with having churches around and would likely move to other areas unless action was taken to oust the worshipers.

The only law actually relevant to this decision—the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—was not even on the Planning Board’s radar.  Even the Planning Commission gave blank stares as I explained that, under RLUIPA, a city may not make land use decisions that impose a substantial burden on religion without a compelling state interest.

The district court agreed, and granted the church’s motion for summary judgment on its RLUIPA claim.  The district court held that “Grace Church experienced outright hostility to its application, decision-making that is seemingly arbitrary or pretextual, and ignorance regarding the requirements of controlling federal law regarding the application of land use laws to religious institutions.”  (Emphasis added.)  In fact, this ignorance of the applicable legal limits of what planning official may do was by design.  As the court further noted, the evidence showed that the city established the local Planning Board, made up of community members with no legal training and little to no knowledge of RLUIPA, to be “a central part of the mandatory CUP process.”  And yet there was “no attempt by the City to educate the [Planning Board] regarding RLUIPA.  To the contrary, the City expressly directed the [Planning Board] to deny CUPs for any project conflicting with the stated objective of preserving industrial lands.”  (Emphasis added.)

The city wound up paying $950,000 of taxpayer money for their refusal to heed the limits of its authority, in addition to granting the requested CUP.

City planners often have a one track mind, and they’re quite used to glazing over objections—even as to federal supremacy and constitutionality—as they plod ahead in their agendas.  I’d say the citizen objectors in Placentia are well justified in voicing their concerns.

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Written by Tim Kowal

February 20, 2010 at 5:34 pm

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