Tuesday, September 13, 2005 | This land is my land. City Councilwoman and mayoral hopeful Donna Frye pushed the issue of eminent domain abuse into the forefront of the city’s business and the mayoral campaign Monday, urging the city to reconsider policies that she says put the profit of a few ahead of the interests of home owners and small business owners.

First in a morning committee hearing and later at a press conference hosted by her mayoral campaign, Frye joined a growing chorus nationwide questioning how eminent domain is used in seizing private land.

The Government Efficiency and Openness Committee, chaired by Frye, heard the pros and cons of the history of redevelopment law Monday morning. The committee then recommended that the full City Council limit the government’s ability to take property and adopt other policies that protect and better inform property owners of their rights.

“The simplest way to discuss this with the public is to say to them that the public has a right to feel safe … that their businesses and their homes will not be taken by government and handed over to another private property owner for profit,” Frye said.

In June, the U.S. Supreme Court ruled in favor of the city of New London, Conn., in the landmark Kelo case, which allowed governments to seize private land that is deemed “blighted” and give it to another private entity or landowner if the transfer is found to be in the public’s best interest. Read more about the Supreme Court decision.

However, the ruling did leave open the possibility for local governments to craft their own laws in regards to eminent domain. Efforts in the state Legislature to tailor the state’s laws have to date failed, prompting Frye to review the city’s policies.

The issue has hit home locally. Ahmed Mesdaq, owner of the Gran Havana Cigar and Coffee Lounge, recently lost his battle with the city. Shortly after remodeling his café in the Gaslamp Quarter, the Afghani immigrant was informed that the city would be seizing his land in order to make way for a Marriott Renaissance Hotel that will bring more tax revenue into city coffers. He quit his legal battle against the seizure in June, saying he was exhausted physically and financially.

A redevelopment project in City Heights has also raised the ire of local property owners and opponents of current redevelopment policies. Jody Carey and Dennis Wood say they bought and remodeled a home there in early 2004, only to find out later that year that their property could be seized and passed along to a private developer to build condominiums.

The Encinitas City Council in July voted to limit its ability to seize private land.

Redevelopment officials defended their work at the hearing, saying that between 80 and 90 percent of all properties are acquired through friendly negotiations and not eminent domain.

A spokesman from the Jerry Sanders’ campaign said that the former police chief, Frye’s opponent in the November runoff election, believes that eminent domain is an important tool in redevelopment. However, the spokesman said, Sanders also believes that officials have abused a loose definition of the term “blighted.”

The council committee recommended Thursday that the full City Council: do away with its powers of eminent domain; monitor negotiations with a third party mediator to ensure that property owners aren’t threatened or intimidated; enact strict guidelines for developers to meet before using eminent domain; make sure that property owners receive just compensation; and require that negotiations be made public record.

She said she hopes to see full council action within 30 to 60 days.

Wastewater waiver. After spending a summer pressuring the pension board to waive its attorney-client privilege in connection with ongoing investigations into City Hall, the City Council has balked at applying the same waiver to documents subpoenaed from the Metropolitan Wastewater Department by federal investigators.

The Securities and Exchange Commission and U.S. Attorney’s Office investigations into City Hall have expanded from the pension system and into the wastewater department, where the city discovered a number of years ago that it was improperly charging residential users for wastewater treatment to the benefit of large industrial users.

The City Council has since changed its rate structure, but the previous policy has called the city’s receipt of local and federal grants into question. There are also questions as to whether the city properly disclosed the risk this policy placed on its financial state.

Councilman Jim Madaffer said he’s worried that doing so could harm the city in a separate lawsuit that seeks damages for residential ratepayers. In that suit, a utility consumer advocate is seeking damages of up to $200 million.

Pension board members have argued that a full waiver of its attorney-client privilege could expose the pension system to litigation.

The City Council will resume the discussion Tuesday in closed session. The council has waived its attorney-client privilege in connection with the ongoing investigations all eight times it was asked, said Councilman Brian Maienschein.

Board of Defectors. The City Council found one more person willing to serve on that pension board Thursday, approving the nomination of La Jolla attorney James Waring to fill the spot of one of the four resigned board members.

That leaves the council with two more gaps to fill. The council appoints seven of the 13 trustees on the board that sits square in the middle of the city’s legal, political and economic battles.

The most high-profile struggle ongoing at the pension board is the waiver of attorney-client privilege, as investigators and auditors of all varieties want access to years of pension documents and e-mail correspondence. Until two weeks ago, the board had refused to turn over any of the documents to the SEC, U.S. Attorney’s Office and auditors trying to verify the city’s stalled 2003 financial statements.

A federal judge ruled last month that the board had to turn over the documents to the U.S. Attorney’s Office, and the board opened up limited access to the documents to chosen investigators two weeks ago.

Former Mayor Dick Murphy originally nominated seven members for the board in April after voters approved a November ballot measure that shifted the majority of the board to independent outside volunteers. Prior to that, the board had been dominated by union representatives and city management.

The structure was blamed for cozy relationships that allowed two funding deals in 1996 and 2002 that led to a pension deficit of at least $1.37 billion and a number of investigations.

Three of Murphy’s seven original nominees stepped down before being confirmed by the council. Four more stepped down in July after the board came under pressure to hand over the documents and City Attorney Mike Aguirre sued the system.

Waring said that although he hasn’t been privy to the advice of the pension system lawyers, he was inclined to believe the waiver was a good idea.

“My bias would be to disclose as much information as possible,” Waring said.

– ANDREW DONOHUE, Voice Political Writer

Please contact Andrew Donohue directly at

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