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Indybay Feature

Eminent Domain for the Gardeners

by Steve Pleich
Progressive Council Could Support Civil Action
Although the City of Santa Cruz has now entered into a three-year lease with the Seaside Company to provide for the continuance of the Beach Flats Community Garden, the joy of the gardeners and their supporters is less than full for several good reasons. First, the agreed upon footprint of the garden is 10,000 square feet less than the original plot; a 40% reduction. Secondly, the three year lease is at best a temporary solution that will have to be revisited at some near point. And third, the dollar a year lease can be terminated by the Seaside Company at any time on 9O days notice adding an element of impermanency to an already unacceptably uncertain future. The Seaside Company could be moved by an appeal to the better angels of its nature and cede the entire 26,000 square foot garden space to the gardeners in perpetuity but no one is holding their breath hoping that will happen. So how can we create a permanent Community Garden in Beach Flats? The simple answer is through the legal doctrine of eminent domain.

For some time, the possibility of invoking eminent domain has been privately discussed and at least one current council member has come out in favor of this approach. Indeed, the City Attorney has publicly stated that it is reasonably likely that the city could make the legal showings of public purpose, public good and necessity that are required by California Code of Civil Procedure 1240 to obtain a favorable court judgment . But here's the rub. Any such action must be initiated by the city council and although Santa Cruz Municipal Code Section 12.32 does provide for some streamlining and fast tracking of such an action, a majority of the present council would have to vote in favor of a resolution which would direct the City Attorney to commence the civil suit. Without speaking for anyone other than myself, I have serious doubts about such a majority vote coming from our present council composition.

There are, of course other elements to the discussion about how to create a permanent community garden in Beach Flats. I have made the suggestion that the current site of the Kaiser Arena may be an alternative that could considered. The city was able to skirt full environmental and coastal review for construction of the arena because it was classified as a "temporary" structure. The building must be torn down in three years, coincidentally the same time frame as the new lease extension. Although not an ideal site, it would be a signature location for a community garden that should be a shining and visible jewel of our entire community. It is also a large enough parcel to accommodate all of the gardeners. However, that being said, the invocation of a civil action for eminent domain to acquire the property at the present location remains the first, best option.

This and other ideas should and must be part of the community conversation moving forward. The gardeners need our support if a permanent location for this cherished resource is to be created. I will shortly be announcing my candidacy for city council and the gardeners have and will continue to have my full support. But one or even two affirmative votes will not be enough. Electing a progressive majority to our city council will be a major step toward insuring that future generations can participate in and enjoys the fruits of a community garden.

Something for all of us to consider between now and November.
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by Caltrans
Steve, where will the City come up with the money to pay for Seaside's land. I hope you realize how the eminent domain process works. The land has to be appraised and an offer to buy made to Seaside. Only once they refuse to sell can the eminent domain process begin.

The Council would have to pass a Resolution of Necessarity to authorize the filing of a court action. The City would then have to deposit the appraised value of the land with the court. Once that's done, the City could ask the court for a possession order.

The key to winning an eminent domain case is showing the land is being acquired for a public purpose. Granted the city attorney has opined such an argument can be made, however it's not necessarily a slam dunk. The argument could be made that the acquisition is a gift of taxpayers funds (something illegal under the California Constitution) since it benefits a group of individuals and not the city as a whole.
by John Cohen-Colby
Community gardens serve a community purpose. The City should establish community gardens throughout the City. So much land — which could feed people in need — is wasting away. Demand not just the Beachflats Community Garden be given land, but that community gardens be established in every neighborhood.
Caltrans - I agree completely. The property has not been appraised to my knowledge but certainly would be in advance of any litigation. Chapter 12.32 lays out the required council actions pretty clearly and as a former constitutional lawyer, I understand the takings and due process issues. My point is that the current council is unlikely in the extreme to pass the resolution.
by progressive
and not this tea bagger neocons fronted by TBSC and big monied interests.

when you have a city council that smirks and rolls their eyes at the public then you've got a problem.

by John Cohen-Colby
Micah Posner stood up for the Beach Flats community by moving to obtain the land for the community garden through eminent domain. Micah realizes this will become an election issue. His compatriots on the City Council serve the Seaside Company, not the people. Imagine the mayor chiding people for not being respectful enough to the Seaside representative. Can you imagine her doing that for Robert Norse?

Please read this article about the Beach Flats Garden. Micah is profiled in it.
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