Eminent domain: Would they dare?

A recent move in the game of can-we-build-a-high school-this-century suggests the Chico school district now may be willing to play hardball by using its power of eminent domain.

Finally believing what government agencies and environmentalists have told the Chico Unified School District since a school bond was passed four years ago, district leaders are now looking westward for the city’s new high school.

“Development on the east side of Bruce Road is going to be very difficult,” conceded CUSD Superintendent Scott Brown, referring to land owned by the Schmidbauer family of Eureka on which the district had set its hopes. On Aug. 21, the CUSD filed a Section 404 wetlands fill permit application with the U.S. Army Corps of Engineers for the Schmidbauers’ westernmost parcel. The deadline for comment is Sept. 20.

But neither the Schmidbauer family nor Enloe Health System (the owners of the other parcel the district included in the environmental-impact report examining four south Chico sites) wants to sell its west-of-Bruce Road land for less than it believes the land could fetch if bought by a residential or business developer.

Jim Mann, who represents the Schmidbauer family, said he is no longer granting interviews to the News & Review due to a difference in philosophies. He referenced comments he made to the Chico Enterprise-Record: That he was surprised the CUSD would make that move, and they’re welcome to buy the property at the northwest corner of Raley Boulevard and Bruce Road, if they pay twice the price of the $60,000-per-acre land across the street.

But Brown said two independent appraisals sought by the district as recently as eight months ago set the value of any of the four parcels at no more than $60,000 an acre—"within our budget.”

He said that before deciding if eminent domain would be a smart step, the district is waiting to hear back on updated appraisals and from federal and state regulatory agencies on the two properties to the west, which also host endangered Butte County meadowfoam but are considered more easily mitigated. The Enloe land already holds most of the needed environmental clearances.

“Best-case would be that we could enter into an agreement with a willing seller at an appropriate price,” Brown said.

Eminent domain has been in use as a means to acquire private property in the public good since biblical times, and it gets around the Fifth Amendment of the U.S. Constitution by providing “just compensation” when the government takes private land for the common welfare.

“It’s time-consuming and expensive,” said Donald Holtgrieve, a professor in the Geography and Planning Department at Chico State University. “Most cities and counties try to avoid [eminent domain] if they possibly can.”

“Eminent domain is politically difficult,” Chico attorney Jeff Carter said. “It is, perhaps, the ultimate power of the government.”

A fairly recent local case was when the city of Chico reached a settlement to acquire some of the Drake-Simmons property near Highway 32, to preserve as parkland.

Rick Crabtree, a land use attorney in Chico, said eminent domain doesn’t necessarily mean long delays. “If the district got aggressive about moving forward, they could take possession within a few months.”

Crabtree, who represented the Natomas Unified School District in an eminent-domain proceeding that ended in settlement, said it could play out here this way: The CUSD could get an appraisal and make an offer. If the property owner rejected the offer, the district could file for eminent domain and, with court approval, even place a deposit and take possession of the property right away.

“The process is set up to try to discourage the parties from getting into litigation,” Crabtree said. “Once the court gives you possession of the property, you can proceed as if you owned it. You can build your school.

“All you’re fighting over is price,” he said, and if a settlement isn’t reached, a judge or jury will listen to a parade of appraisers and decide on fair market value. “The risk you run is that the court could decide on the higher price.”

Carter and Crabtree agreed that if the CUSD were to seek Enloe’s property through eminent domain, the nonprofit would have no more rights than any other private landowner.

The process is much more common in big cities where land as at an even greater premium. In 2001, 12 years after first filing for eminent domain, the Los Angeles Unified School District reached a settlement with the owners of the Ambassador Hotel to buy the property.

There are often no hard feelings, said LAUSD Spokeswoman Hilda Ramirez, who added that the district will often go ahead and file eminent-domain proceedings even as it’s in the midst of friendly negotiations with a property owner.

Carter said the use of eminent domain is infrequent in the Northstate, but, "I suspect you’re going to see eminent domain become a more common procedural device."