Didden is now asking the Supreme Court to clarify its ruling in Kelo and direct lower courts on how they should interpret it. "We want the Supreme Court to rule that the Constitution does not permit governments or citizens acting on their behalf to demand money in exchange for allowing property owners to keep what is rightfully theirs," Berliner said. "The very fact that we have to ask the highest court in the land for such a ruling underscores how precarious and threatening things are getting for ordinary American landowners," Berliner added.
Here is the press release issued today by the attorneys representing the San Francisco property owners:
THE REFERENDUM PETITION CAMPAIGN
The Bayview/Hunters Point Redevelopment area law was passed by the Board of Supervisors in May, 2006 and subsequently signed into law by Mayor Newsom to create the largest Redevelopment area in SF history. Immediately afterwards, residents, taxpayers, small businesses and property owners organized in an attempt to refer the issue to San Francisco voters by mounting a referendum petition drive. The right of referendum is an vital civil right guaranteed to citizens by the California Constitution which empowers citizens to require that any legislation passed by the Board of Supervisors to be made subject to a vote of the people at a general election if sufficient signatures are gathered. This right guarantees that the public interest is served by laws passed, not the narrow special interests which are often behind much legislation passed by politicians. The campaign succeeded in gathering 33,056 signatures which the SF Department of Elections certified as sufficient to satisfy the statutory requirements necessary to require that the legislation be suspended pending it being placed on the ballot.
CITY ATTORNEY'S OPINION DISENFRANCHISES VOTERS
On September 19, 2006 , several days after the Department of Elections certification, the San Francisco City Attorney Dennis Herrera issued an opinion directing the Clerk of the Board of Supervisors to reject the referendum petition on the grounds of an alleged procedureal defect. Although the petition had included a complete copy of the text of the ordinance passed by the Board of Supervisors, the City Attorney argued that it had failed to include no less than 10 separate documents which had been incorporated by reference into, but not attached to the ordinance. Even though these incorporated documents were clearly identified in the petition and readily obtainable from the Clerk's office, the City Attorney directed the Clerk to reject the petition because it did not set forth the complete text of all of these substantial referenced documents in addition to the actual text of the Ordinance which was what was passed by the Board of Supervisors.
The City Attorney's opinion argues that a virtual laundry list of completely separate documents, which had been referenced in the official text of the ordinance, should have been included as part of each petition. His opinion, if left unchallenged, could lead to circulators having to carry around individual petitions each the size of small telephone books, making it physically and financially impossible for grassroots citizens groups to exercise their constitutionally guaranteed right of referendum. In effect, the City Attorney's opinion would allow complete insulation for any municipality seeking to protect its legislation from the referendum process. The municipality merely needs to incorporate enough documents by reference into a piece of legislation so as to make the inclusion of them impossible for those seeking signatures on a referendum petition.
Herrera also seeks to hold referendum petition circulators to a higher standard than that of what is required of legislation passed by the Board of Supervisors or presented to voters at the ballot box . The text of the legislation in both these cases is exactly what the Defend Bayview/Hunters Point Referendum committee circulated.
As it stands, the City Attorney's opinion effectively disenfranchises San Francisco's voters from ever being able to examine and vote on this controversial legislation which would have a profound impact on over two square miles of San Francisco and costing the City's General Fund hundreds of millions of dollars in the process.
The public interest is not served by preventing the citizens of SF from being able to vote on such a massive project. It is clear that City Hall does not want a close examination of the Plan by SF voters and fears the likelihood that such examination will lead to its defeat at the ballot.
REFERENDUM COMPLIED WITH CALIFORNIA ELECTIONS CODE
Petitioners complied with California Elections Code Section 9238 (b) requiring that a referendum petition contain the "text of the ordinance or the portion of the ordinance that is the subject of the referendum." This is particularly so as petitioners put forth a petition for signature that included an exact copy of ordinance 113-06 as passed by the San Francisco Board of Supervisors in May of 2006. Incorporated documents were clearly identified and readily obtainable from the office of the clerk of the Board of Supervisors. The Board of Supervisors made incorporated documents in ordinance 113-06 available to the public in the same way and in the same place when that legislative body considered this ordinance. The petition meets the requirements of the San Francisco City Charter and the California Election Code in all other respects.
A FEW GOOD REASONS FOR OPPOSING REDEVELOPMENT
• Takes control out of hands of community. The communities loss of self determination is made law by this Plan which relegates the community to a solely 'advisory' status (meaning no legal standing).
• Expanded powers of eminent domain to take private property from one owner (typically small property owner) to give to another (typically rich developers and corporations). The Agency was forced to eliminate the seizure of homes in "R" districts – but the majority of the Redevelopment Area is subject to Eminent Domain for a laundry list of pretexts.
• There has never been a vote on the Plan by the community at large.
• Affordable housing to be provided is not affordable by the majority of those currently living in the community.
• Redevelopment leads to gentrification and displacement of residents and small businesses and repopulation.
• Does not benefit and serve the interests of current residents and property owners. It is a land grab to benefit others not of the community.
• All new property taxes collected in the area (hundred of millions of dollars) meant for the General Fund to pay for police, fire, health services, and school programs will instead be diverted to friends of the Redevelopment Agency and the Agency bureaucracy itself.
• Redevelopment has had a terrible history of destroying neighborhoods within San Francisco, particularly for people of color. Redevelopment destroyed a thriving Black and Asian neighborhood community in the Fillmore District , evicting thousands of residents and small neighborhood businesses. It replaced them with a sterile, contrived area that's still suffering from four decades of abuse and neglect. Displaced residents can't afford to live there and crime is at an all time high. In spite of a few changes, the principles of autocratic heavy handed policy making from outside the community remains firmly intact.
• The Bayview/Hunters Point Redevelopment Area legislation is a clear violation of the California Redevelopment Law which limits the establishment of Redevelopment Areas to areas where the elimination of blight and redevelopment of the Project Area could not reasonably be expected to be accomplished by private enterprise or normal government activities without the aid and assistance of the Redevelopment Agency. This is empirically false. The area is booming: property values have skyrockets, building permits are being issued for private developments, people are moving INTO the neighborhood. Redevelopment does not belong here and is, frankly, illegal.
• Bogus Blight. The Redevelopment Agency must make a finding of "blight" in a few spots in order to create a Redevelopment Area – yet the "blight" categorization affects the entire area, and the entire area is subject to Eminent Domain powers as established in the Plan. Yet "blight" is never rigorously defined – it is, in effect, whatever the Agency wants it to me. There are examples of so called "blight" in just about every neighborhood in San Francisco.
• The Bayview/Hunters Point Redevelopment Plan is a Land and Tax Grab pure and simple. Seize control of the land from local owners and residents to benefit big developers and corporations. Take the tax out of the General Fund coffers to feed the Redevelopment Agency bloated bureaucracy, which in turn provides corporate welfare. Is a Trojan Horse land grab for rich mega developers masquerading as community benefit.
• Redevelopment Plan does little to address the core root problem of the critical economic and social problems in the area: Jobs, Jobs, Jobs.
Citizens in the Bayview/Hunter's Point neighborhood of San Francisco got together and signed petitions to repeal the city's decision to condemn a bunch of land for redevelopment. But the City Attorney refused to place the referendum on the ballot, claiming that the petitioners weren't complete. They weren't complete because they didn't include the full text of the entire redevelopment plan--a document the size of a phone book.
The Lower Hudson (N.Y.) Journal News has this column on the case of Didden v. Port Chester that we mentioned here. Excerpt:
In an amicus brief filed on their behalf, the Pacific Legal Foundation noted that an unresolved issue of Kelo directly pertains to the Port Chester case. "One of the primary concerns raised by Kelo is that private developers will exploit the power of eminent domain for their own private benefit in just the manner alleged in the complaint in this case," the PLF said in its brief.
The PLF went on: "The exploitation of eminent domain to exact a cash payment from a property owner pushes the limits of the Kelo decision and is so far removed from the accepted and usual legal proceedings as to call for an exercise of this Court's supervisory power."
Who knows what the Supreme Court will do? In any event, what the PLF described has been business as usual, which is a pitiful shame.
In July, we called the Ohio Supreme Court's decision in Norwood v. Horney "the biggest post-Kelo judicial blow to eminent domain abuse in any state in the Union." It appears from this roundup (scroll to bottom) that attorneys will be back in court this week arguing whether our friends at the Institute for Justice are entitled to fees under Ohio law for successfully representing the property owners in the case.
A Mississippi paper ran this profile of a prominent eminent domain attorney in that state. I'm not at all familiar with Mr. Scott, but his common-sense observations and advice give some insight into how he achieved that prominence.