Exeter Schools use eminent domain to take property

By Reggie Ellis

Exeter Public Schools has started the eminent domain process to take private property south of Clarence Street to expand Lincoln Elementary School.

Business Manager Jihad Hemaidan said the property appraised for a value of $100,000 in August 2004. The school district has done an environmental study on the property at 500 S. Kaweah Ave. to make sure there are no leaks from gas tanks underneath the adjacent gas station.

Eminent domain - also called &#8221condemnation“ - is the power of a government agency to purchase private property for public use even if the owner does not wish to sell his or her property.

According to the California Eminent Domain Law Group, the next step in the eminent domain process is to hold a public hearing to adopt a &#8221resolution of necessity,“ however, the California Code of Civil Procedure states that the public agency must find (1) that the project is necessary; (2) that the property is necessary for the project; (3) and that the project offers the greatest public benefit with the least private detriment.

At the Sept. 13 Exeter City Council meeting, Superintendent Renee Whitson said the district has limited options other than closing the street and expanding to the south. City Park is located to the west and homes are located to the north and east. The school district also looked into adding more portable classrooms within the current school grounds. Whitson said that proposal would have cost the school close to $1.5 million ($150,000 for each portable) and taken away playground and open space at the school turning it into &#8221an inner-city school.“ Hemaidan said expanding in any direction but south would require the district to take anywhere from five to seven homes through eminent domain.

&#8221It would be very costly to go that way,“ Hemaidan said. &#8221And the prices could continue to go up. Taking this property [on Kaweah] would be about the same as taking just one of the homes.“

A drive-thru coffee shop opened on the property at 500 S. Kaweah in July of this year, despite prior knowledge that the school district was interested in the property. The district acquired property to the west of the coffee shop for the expansion in 2002. Jacob Barber, who owns Java Island with his brother Casey, said he has not yet done an appraisal but knows that the $100,000 would not cover the improvements made to site as well as the operational business. The property on which both the coffee shop and the gas station are on, is owned by Sul Lakhani.

&#8221We know the property owner will be compensated,“ Barber said. &#8221We just want to make sure that if our business is displaced we are taken care of as well.“

By law, &#8221just compensation“ applies to the property owner and a business tenant on the property. Barber, who has not yet done an independent appraisal of the business, said his attorney has advised him that the district must purchase the business another suitable location conducive to a drive-thru coffee shop within 50 miles of the current property. The law does include for the &#8221loss of business goodwill.“ Goodwill is defined as &#8221The benefits that accrue to a business as a result of its location, reputation for dependability, skill or quality, and any other circumstances resulting in the probable retention of old or acquisition of new patronage.“ A number of factors go into the equation such as length of time in the business, nature of the industry, customer base, economic conditions, reputation, security of occupancy, nature of the business’ fixed assets and risk associated with the business. Some businesses possess no goodwill value while others may possess thousands of dollars.

&#8221There is a lot that their appraisal does not take into consideration,“ Jacob said. &#8221I have never experienced eminent domain but I would think if they can't close the road then there is no benefit to the community.“

The school district's plan is to close Clarence Street - which runs from F Street east to Kaweah Avenue (Highway 65) - purchase the aforementioned property across the street and build over the area to provide the more than 10 classrooms needed for future growth. After conducting a traffic study, City Administrator John Kunkel recommended against closing the street in June 2004 because of traffic congestion concerns. He also had concerns about a drive-thru business that was opening across the street with the understanding that Clarence provides highway access.

At the Sept.13 meeting, Whitson said that even taking homes on C Street east of the school would still involve closing a city street with highway access.

&#8221We are called to be visionary,“ Whitson said. &#8221We have to look beyond ourselves to the future and the future is our children.“

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