ESCONDIDO: No easy answer in 'bomb house' compensation

Attorneys say county must prove necessity of burn: January 8, 2011

It's a question that has been asked for weeks: Will the owners of the "bomb house" property near Escondido be compensated for the purposeful and much-documented government torching of their home?

The answer, according to two San Diego eminent-domain attorneys, is as clear as smoke.

"It ends up being a matter of proof," said Daral Mazzarella, who said he has practiced eminent-domain law for 25 years."Was this (burn) really the least intrusive way of solving the matter? It has to be truly necessary and not just convenient."

Authorities maintain the burn was absolutely necessary.

Led by the San Diego County Sheriff's Department, local, state and federal bomb experts torched the single-story home at 1954 Via Scott, reducing it to ashes Dec. 9.

It was the only safe way, they said, to destroy the giant cache of explosives found inside weeks earlier. They couldn't handle the extremely volatile materials ---- which included chemical compounds liable to detonate with just a nudge ---- without risking life and limb.

A landscaper was seriously hurt in the home's backyard Nov. 18 after he stepped on a small amount of explosive powder, authorities said. And one of their own, a bomb expert, was lifted out of the yard unscathed after he triggered a minor blast, according to court documents.

The home's renter, George Jakubec, remains jailed without bail. He pleaded not guilty to federal bombmaking and bank robbery charges last month.

The question of compensation for the home's owners, asked in blogs and at watercoolers across the region, gained momentum last week with news that their attorney filed a claim demanding $500,000 from the county for their loss and distress.

A claim is a precursor to a lawsuit.

The county rejected the owners' offer to sell the property for $494,000 two days before the burn, according to the claim. Public records show the property sold for $479,000 in March 2005.

No final decision has been made on the claim, said Thomas Bunton, a senior deputy attorney for the county.

In an interview Tuesday, Bunton repeated the county's assertion that it is not obligated to pay the owners because the home was destroyed "to protect public health and safety."

The home's owner, identified by county records as Michele Holt, has not returned repeated phone calls.

Bunton said a statement provided by county spokesman Michael Workman in December best outlines the county's legal justification for burning the house.

The statement discusses the power granted to government when state and local emergencies are declared, as they were in the days before the burn.

Those declarations give government "long-standing, historical police power to take such measures as might be necessary to eliminate the threat to public safety. The law has long been that in an emergency, where there is peril to the public, private interests must yield to the right of the government to proceed in such manner as it deems appropriate."

Private attorneys reached Thursday agreed that government has strong constitutional authority to regulate land use and, in some cases, to take the land and deny compensation for health and safety reasons.

But when it can do that isn't black and white, said Robert Stack, also a San Diego attorney who specializes in eminent domain, the authority that allows government to take property for public use.

The Fifth Amendment of the Constitution states that private property cannot be taken for public use "without just compensation."

But there are exceptions.

There is legal precedent allowing the government, for example, to seize a farmer's land to quarantine it against the spread of an invasive insect and deny compensation for crop loss, Stack said.

And government code enforcement officers, typically after a lengthy process of hearings and notices, can also seize property that has been deemed a nuisance or safety hazard, without paying the owner.

There are cases, however, where government has overstated the danger it sought to wipe out and is compelled by a court to pay compensation. Stack said the bomb house case may fall into that category.

"I think the (property owners) definitely stand a chance" in a lawsuit, he said, adding that he doesn't think there was an "immediacy" of danger that would allow the government to take the property and deny compensation.

The county acted, Stack said, as if it had "wartime" powers. He said the county must show it burned the home "as a last resort."

Mazzarella, the other eminent-domain attorney, said he believes the county and property owners will eventually reach a settlement to avoid a costly trial.

Several insurance experts said last month it was highly unlikely that any homeowner policy would cover a government's deliberate burning of a home.

It's not clear what responsibility, if any, the owners had in this case.

Mazzarella said he doubted any law requires them to know exactly what their tenant is doing inside the home. If they had received complaints about explosions, "that's a different story," he said.

Larry Glavinic, a Valley Center property manager, said he felt the owners were obligated "to do enough due diligence so that you know who you're renting to, and do periodic checkups."

Still, he said, the county's actions in the case appeared "a little heavy-handed."

"To take the whole damn house," Glavinic said. "To me, it was too much. Way too much."

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