Patriot Voter Guide

Yes on Proposition 98; no on 99

Protect all property owners from eminent domain

By Rohit J. Joy

From the May 2008 Print Edition

In the summer of 2005, the U.S. Supreme Court, through Kelo v. New London, ruled that the taking of private property for private use is permissible provided that it serves some abstract public purpose. The decision was a departure from the traditional constitutional interpretation of the “takings” clause of the Fifth Amendment, which requires that seized private property be put to “public use,” such as for a school, road, or park.

Large developers immediately jumped on the ruling, claiming that land condemned through eminent domain could be developed to yield more property tax revenue and thereby serve a legitimate public purpose. The result has been that many ordinary citizens have lost their family homes and farms to eminent domain in the name of “economic development.”

Property-rights groups have fought to end this abuse across the nation, and have been successful in many states. Two especially notable examples are Measures 37 and 39 in Oregon, which together bar governments from taking private property for transfer to other private parties and require just compensation for losses in land value caused by environmental or other land-use regulations. An effort to add similar protections to the California Constitution was undertaken in 2006 by a coalition of groups led by the Howard Jarvis Taxpayers Association. Unfortunately, Proposition 90, the fruit of this effort, garnered 47.5 percent of the vote, short of the majority needed to pass.

The failure of Proposition 90 has left California one of the few states without true protections from eminent-domain abuse. To correct this, the Howard Jarvis Taxpayers Association has once again embarked on a mission to insert such protections into the state constitution through the initiative process. Christened the “California Property Owners and Farmland Protection Act,” Proposition 98 provides that private property may be taken only for public use, not for private use under any circumstances.

Some additional protections are built into Proposition 98, such as a prohibition on property being taken and used for the same purpose, first right of refusal for owners to repurchase their property at the price they sold it for if the project their land was condemned for is abandoned, mandatory compensation for reasonable expenses borne by owners of condemned property, and the phasing-out of rent control. The “regulatory takings” provisions that were part of Proposition 90 unfortunately are not included in Proposition 98, but this has enabled the coalition to bring on board former opponents such as the California Farm Bureau, which dramatically increases the measure’s odds of passing.

Opponents of Proposition 98, mainly city and county governments and large developers, realize that eminent-domain reform has momentum and that they cannot protect their ability to seize property simply by waging an all-out opposition campaign against the measure. Instead, a coalition of groups that benefit from eminent-domain abuse, including the League of California Cities, the California State Association of Counties, and the California Redevelopment Association, has qualified a competing measure — Proposition 99. Unlike Proposition 98, which protects all types of private property from condemnation for private use, Proposition 99 only protects owneroccupied homes, leaving rental properties, businesses, and places of worship at the mercy of politically connected developers.

Even worse, Proposition 99 contains numerous loopholes. One provision permits the transfer of private property to other private parties if the condemning agency deems it “incidental” to or “necessary” for the public project to be feasible, whereas under Proposition 98 the only exception to the “public use” requirement is “leasing limited space for private uses incidental to the stated public use.” Another loophole allows the seizure of property in case of “blight,” which includes such minor conditions as “lack of parking” or the “existence of subdivided lots of irregular form or shape.”

The most dangerous stipulation in Proposition 99 provides that if both propositions pass, then the one with the greater number of “yes” votes prevails and all provisions in Proposition 98 are null and void. The reason for the inclusion of this “poison pill” is so cities, counties, and redevelopment agencies can avoid being subject to the stronger protections in Proposition 98 even if it passes, if they can turn out more votes for their initiative. Proposition 99 is thus a “Trojan Horse” measure that aims to fool the public into thinking it is getting real reform and dampen the demand for true protection of private property. In reality, Proposition 99 “is not likely to significantly alter government land acquisition practices,” according to the Legislative Analyst’s Office.

On June 3, Propositions 98 and 99 will both appear alongside the partisan primary contests for legislative seats. The California Patriot urges readers to protect our cherished right to our private property by voting “yes” on Proposition 98, and to reject the stealth agenda of eminent domain’s champions by voting “no” on Proposition 99.

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