Voter Guide 2006: Prop. 90: Rewrites rules on eminent domain — and much more | October 18, 2006 | Almanac | Almanac Online |


Cover Story - October 18, 2006

Voter Guide 2006: Prop. 90: Rewrites rules on eminent domain — and much more

by Andrea Gemmet

Does California need a constitutional amendment to protect property owners from eminent domain abuses? And if so, does Proposition 90 go too far, making any new land-use regulations subject to budget-busting lawsuits?

Proponents of Proposition 90 say it is a desperately needed measure to curb government agencies' attempts to take away people's land for the benefit of wealthy developers and real estate investors.

The initiative is funded largely by New Yorker Howard Rich, a Libertarian real estate investor. Mr. Rich is also funding five similar ballot measures in five other western states.

But critics say there's much more in the proposition than what supporters acknowledge.

"Proponents say this measure is about eminent domain reform. But that's just the bait. The trap is hidden within the fine print of the measure — far-reaching provisions that will cost taxpayers billions of dollars," according to the League of California Cities, a major backer in the No on Proposition 90 campaign.

What is eminent domain?

Eminent domain is a process government agencies can use to acquire property against the owner's wishes. The state might use eminent domain to make way for a freeway extension, or a city might use it to redevelop a "blighted" area.

East Palo Alto used eminent domain to force the sale of land in the Whiskey Gulch area to make way for the upscale University Circle development of offices, retail shops and a Four Seasons hotel.

"It's always an emotional issue," says Woodside Town Manager Susan George. "Big old bad government is trying to take people's homes away from them."

Ms. George said that, personally, she doesn't support Proposition 90 because it goes too far and steps on the toes of local governments when it comes to local land-use authority. The Woodside Town Council hasn't taken a stand on the issue.

When she was growing up in Monterey, Ms. George said, there was a fraught battle between the city, which was trying to revitalize a blighted downtown area, and an elderly woman who refused to sell her home.

"Now, 40 years later, the area is gorgeous," she said. "It's been a remarkable, positive economic development for the city. I wouldn't want Monterey to look the way it did 40 years ago."

Kevin Spillane, spokesman for Yes on 90, said that people don't realize that most owners affected by eminent domain give up the fight before their property is actually condemned.

"They sell at a dramatically reduced value because they usually can't afford legal representation to fight city hall," he said. "When they declare an entire area blighted, the value of property automatically declines dramatically."

Tom Adams, president of the board of the California League of Conservation Voters, is deeply involved in the No on 90 campaign.

Protecting homes?

"I think the perversity of Proposition 90 is that it claims to be protecting our homes, but it actually takes away protections of people's homes," Mr. Adams said. "There are very few cases of eminent domain in the state, particularly against houses, but millions of Californians depend on zoning to protect (their) houses. It will take away the ability to protect homes, protect property values and quality of life."

Cities and counties regulate land use through zoning codes, laws that specify where housing, commercial businesses, industrial or agricultural uses can take place.

Zoning gives cities the right to prevent a high-rise apartment tower or a 24-hour mini-mart from being built in the middle of a block of one-story houses, for instance. Zoning may keep different land uses separate — forbidding a pork-rendering plant in a downtown shopping district, for example, or a strip club next to a preschool. It also regulates density; Atherton's minimum one-acre lot size is an example of such regulation.

"(Zoning) makes sure land uses are compatible, and it protects property values," said Mr. Adams.

The provisions of Proposition 90 say that any government action that results in a loss to private property — not just real estate, but even business interests — will require taxpayers to pay for the loss, Mr. Adams said. It will open the door to lawsuits whenever a city or county wants to regulate land use by changing zoning or placing other restrictions on property, whether they are environmental protections, consumer protections or noise restrictions, he said.

He gave an example of a case in Oregon, where voters passed Proposition 37, a similar initiative, two years ago. A man wanting to build a gravel mine filed a claim because the local authorities wanted to limit the hours of the gravel mine's operation, truck traffic, and noise, Mr. Adams said.

"The road leading to the gravel mine runs right next to people's houses," he said. "This guy's asserting his property rights, but what about the property rights of the people who live around there? Their property rights are being damaged. If property rights trump zoning, it means everybody's property values are going to suffer."

Close to home

Closer to home, Proposition 90 could handicap the Menlo Park City Council if it wanted to rescind recent general plan and zoning changes for the site of the former Cadillac dealership at 1300 El Camino Real, opponents said. The city could be liable if a future council rethinks permitting higher building heights and density at the site.

Mr. Spillane said that the opposition to Proposition 90 is running a campaign of distortion. It won't be impossible to make changes to zoning, or to enforce laws already on the books, he said.

"That's too broad a statement to make," he said. "(Government agencies) may choose not to do something they would've done otherwise; hopefully, they will be more careful."

Are existing laws exempt?

Mr. Spillane said that Proposition 90 exempts new laws enacted to protect public health and safety, and that existing laws can actually be amended if they are furthering the original intent of that law.

Mr. Adams said it's not that simple. The initiative language clearly states that it applies to government actions, including resolutions, ordinances, provisions and statutes, despite what proponents claim, he noted. Environmental regulations would be particularly vulnerable, because protecting natural resources is not normally considered a public health and safety issue.

"The idea that existing laws are protected is a ruse, I think," Mr. Adams said. "If San Mateo County imposes conditions on timber harvesting, they pass a resolution, and that's a new government action.

"When the Menlo Park Planning Commission takes action on a use permit, they do so by resolution. When the state Coastal Commission takes an action, it does so by resolution."

Mr. Spillane said that despite the predictions of doom and gloom, Proposition 90 will not "end western civilization as we know it."

"And if it does, it's subject to the will of the people and the will of the Legislature," which can overturn it, he said.

Previous attempts by the state Legislature to reform eminent domain law never made it out of committee, he said.

"The other side has no one to blame but themselves," said Mr. Spillane.

While the League is a key part of the opposition, the breadth of the coalition against Proposition 90 encompasses everyone from the building industry and state Chamber of Commerce to consumers unions, labor and environmentalists, Mr. Adams said.

"Everyone from the left to the center right is opposing it," he said. "I think the people who are supporting it come from a narrow and very, very conservative band of the political spectrum."

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