San Diego eminent domain

Meet Ahmad Mesdaq. He owns the Gran Havana Cigar Factory, a store in the fashionable Gaslamp District of San Diego, where he sells cigars and coffee to young professionals. It is unblighted, and very commercially viable property. Nevertheless, the San Diego Redevelopment Agency is condemning the property, to make way for a hotel to compliment the Convention Center.

Mr. Mesdaq tried to challenge the Agency’s “Resolution of Necessity”—the formal determination that his property must be taken. The trial court, however, held that under the “substantial evidence test” that is applied to such things, the existence of any evidence that supports the Resolution prevents a property owner from challenging that Resolution in court, and that a property owner may not introduce any evidence of his own into the proceeding. Although the trial court admitted that the evidence supporting the Resolution was “pretty thin,” and mere “fluff and sizzle,” it nevertheless upheld the condemnation.

So Mr. Mesdaq filed a petition for a writ of mandate, which the Court of Appeal is considering right now. According to the Redevelopment Agency, they need to demolish Mr. Mesdaq’s successful small business because “If Mesdaq’s 5,000 square feet is not included, the [hotel] project, on 35,000 square feet, has the following deficiencies:

1. The number of rooms is reduced from 334 rooms to 237....
2. The on-site parking is reduced....
3. Increased costs are incurred to shore around Mesdaq’s building....
4. Change of the project footprint from a rectangle to an “L” shape....
5. Loss of 150 linear feet of street footage....
6. Reduced ballroom size....
7. Changed “back of house” service areas....
8. Substandard lobby and arrival area....
9. Going back through the review and approval process....

Ah, yes—all dire public emergencies that must be met by seizing a person’s land against his will!

I wrote a brief on behalf of the Pacific Legal Foundation arguing a pet theory of mine, that the California Constitution’s “public use” clause ought to prevent private takings to a greater degree than the Fifth Amendment. Unfortunately, the timing of the case was such that I was unable to spend as much time discussing the theory as I’d like—I wrote the brief on a Saturday and had it sent off by Monday afternoon—but I’m hopeful that others will find the theory attractive. You can read my brief here.

Comments

[Brian]

Question for you: Do you think they are trying to get this done before the Kelo v. New London decision is released? Or, just simply, can Kelo v. New London, if it comes down on the side of the homeowners, help this guy?

[Timothy Sandefur]

Well, if Kelo came down on the side of the property owners, that would probably help him. (Not for certain; in Hathcock, the Michigan case which overruled the infamous Poletown decision, the Court specifically made its decision retroactive. I doubt the U.S. Supreme Court would do that, but later decisions might make a good Kelo decision retroactive...way too early to tell). Anyway, that's likely. But if I were a developer, I would certainly be trying to get a project completed before the decision in Kelo. Since it's March, the Court has about four months to make its decision, though....

I'm hopeful that litigants in California eminent domain cases will add a state public use claim to their complaints in the future, which might help prevent a bad decision in Kelo from being the calamity that it could very well be.

[Brian]

Thanks Tim. Good luck in your work.