Could Fresno use eminent domain to prevent Tower Theatre sale? It would be a rare case
The words “eminent domain” aren’t printed anywhere within the legal documents filed by the city of Fresno seeking entry into the Tower Theatre.
Regardless, the “petition for order permitting inspection for appraisal” is a sure giveaway that city leaders are at least mulling a public takeover of the Tower District landmark — potentially as a last-ditch effort against its sale to a conservative church.
“In order to initiate the eminent domain process, the city must make an initial offer of compensation based on an appraisal,” said Glenn Block, an attorney with the California Eminent Domain Law Group.
“So that seems to be what the city is doing. They can only get an appraisal if they get that inspection and if the property owner is not cooperating with that inspection, this is the process they’d have to utilize.”
Eminent domain, the power of government to take property at fair market value, isn’t a subject elected officials relish discussing, particularly with journalists who ask speculative questions about legally sensitive subjects.
Which explains why Fresno City Councilmember Esmeralda Soria replied “I can’t really get into specifics. We’re just looking at our options,” when asked if the petition represented the first step in eminent domain proceedings.
In January, when the brouhaha over Adventure Church purchasing the theater first ignited, church leaders released a signed statement by owner Laurence Abbate saying Soria and fellow council member Miguel Arias — whose districts boundaries bisect Olive Avenue in the Tower — told him the city may consider eminent domain action in a 2019 meeting.
Soria disputes that version of events.
“(Abbate) misrepresented what was said,” she said. “It’s totally inaccurate and I told him that to his face. That’s why I won’t talk to him without a lawyer present.”
Meaning eminent domain without saying it
In their Fresno Superior Court filing, the city’s lawyers point out California law allows for cities “to take necessary steps to ensure historical preservation.” Just so happens the Tower Theatre is listed in the National Register of Historic Places.
Another passage mentions the city “may also acquire property for development for recreational purposes and for development of facilities in connection therewith.” Which kind of sounds like eminent domain without using the actual words.
“An appraisal is required to occur first so that the City can further assess the next steps it wishes to take with regards to Tower Theater as permitted by law,” the petition reads.
The city filed on May 15, and has since been unable to reach an out-of-court agreement with Abbate to inspect the property, Soria said. A hearing is scheduled in July.
Block, who is not involved in the case, said the city will likely be granted the legal right to go in and look around.
“They’d just have to show that they are considering a potential acquisition and so it’s part of the planning process,” Block said. “Unless there’s something untrue, the court is going to grant the permit for entry.”
How much is the Tower Theatre worth? The 81-year-old venue and surrounding properties went up for sale last October with a $6.5 million asking price. However, the figure Adventure Church agreed to pay was apparently much lower: $3.9 million, according to an ABC30 report.
Fresno does not make eminent domain a habit. In 2013, the threat of litigation convinced a property owner at the corner of Willow and Nees avenues to sell enough land to widen a busy intersection. It occurred more frequently in the early 2000s, when several downtown properties were condemned to make way for the Fifth District Court of Appeals, New Exhibit Hall and Community Regional Medical Center.
Historic preservation through condemnation rare
The eminent domain cases Block works on typically concern public infrastructure projects (i.e. roads, high-speed rail, power lines) or public buildings like schools or fire stations. A city employing those statutes to acquire a historic performing arts venue would be, in his experience, exceedingly rare.
“I am not aware of a condemnation, an eminent domain acquisition, for historic preservation; I have not come across that in my career in California,” Block said. “These circumstances are not a typical use. I have not seen it before.”
The legal hurdle for the city, according to Block, would be to convince the judge that preservation of a historic resource is a legitimate public use of the property.
“I can see that being a legitimate public use to preserve a historic landmark,” Block said. “If the design integrity is jeopardized by it being in private hands, then I could see the city justifying eminent domain to preserve it.”
How would Abbate’s attorneys counter that claim?
“I would argue we’re going to keep the building’s physical integrity and design in place,” Block said. “We’re going to use it in a manner that’s consistent with its historic use. And so our use doesn’t jeopardize that.”
The city’s petition isn’t the only active legal proceeding involving the Tower Theatre, certainly. Later this month, a judge will decide whether the owners of Sequoia Brewing have the first legal right to purchase the property.
You can bet Soria and other city leaders already have their fingers crossed.
Because if eminent domain is the end game, this controversy might get long and expensive. Consider the three-year legal fight the city of Visalia waged in the mid-2000s to prevent a local church from buying a downtown theater.
Meaning we could still be talking about this in 2024.
This story was originally published June 6, 2021 at 5:00 AM.
