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Two propositions battle over eminent domain
April 30, 2008, 12:00 AM By Heather Murtagh

Acquiring property could become more difficult for local and state governments if California voters pass one of two propositions on the June ballot poised to change eminent domain laws.

Voters have two propositions in which to decide this June — Proposition 98 and Proposition 99. While both touch on changing eminent domain rules, each goes at the goal quite differently. In addition, Proposition 98 would phase out rent control and create questions about the legality of cities requiring developers to include affordable housing in new projects. Locally, Proposition 98 could affect development around the Millbrae Bay Area Rapid Transit Station — known as Site One. The pending proposition challenged the developer’s ability to secure property until the proposal is defeated, according Charles Fancher of Fancher Partners.

Proposition 99, however, would not affect the plans. Both initiatives could fail, however both measures cannot be successful. If both propositions pass, the one with the higher number of votes becomes the law.

The scope of protection is a large difference between the two bills.

Proposition 99, known as the Homeowners and Private Property Protection Act, prohibits taking homes for a private person or business.

Proposition 98, known as the California Property Owners and Farmland Protection Act, prohibits government transferring property to a private property. Additionally, under Proposition 98, the government could not take property for a similar use or to consume the natural resources. Rent control would also be phased out as a result of Proposition 98.

Proponents of each bill are also the opponents of the other.

Those in favor of Proposition 99 point to the straight-forward, minimal changes.

"Prop. 99 ... is a very strong eminent domain proposal that will give home owners protection without all the hidden agendas,” said Kathy Fairbanks, spokeswoman for No on Prop. 98, Yes on Prop. 99.

The bill centers around residential property. There are exceptions to the rule if the government was taking the home to: Protect public health and safety; prevent serious, repeated criminal activity; respond to an emergency; remedy environmental contamination that posed a threat to public health and safety; or for a public work project.

Proposition 98 would limit eminent domain on any private property — home, business, even agricultural land. Property could not be transferred from one private owner to another private company. Nor could a building be taken then used for a similar purpose. A housing development could not be taken then used for governmental housing, for example.

State and local government could continue to take property for facilities like schools, roads and parks.

Rent control would also be phased out as renters moved out of the unit, said Marko Mlikotin, spokesman for Yes on Prop. 98.

It is Proposition 98’s changes to renters that has the San Francisco Tenants Union concerned.

"Eminent domain is a non-issue for renters,” said union Director Ted Gullicksen. "But they’re very concerned about just cause and eviction protection.”

Renters rights, including limiting reasons for eviction, could be damaged by Proposition 98, Gullicksen said. Restrictions on converting apartments into condominiums under 98 are also of concern to renters, he said.

Proposition 98 would phase out rent control enacted prior to Jan. 1, 2007, according to the impartial analysis. Those enacted after that date could end immediately.

Lastly, Proposition 98 could challenge a city’s ability to require affordable housing as a part of new developments. The language does not prohibit the requirement, however, the analysis suggested the interpretation would need to be hashed out in lawsuits.

Talk of eminent domain changes has slowed progress of development in at least one local city — Millbrae.

Earlier this month, the Millbrae City Council agreed to allow Fancher Partners, an Irvine, Calif.-based development agency, to move forward on its 2006 proposal for Site One. At the meeting, Charles Fancher of Fancher Partners pointed to a looming ballot measure as the single issue postponing the project.

"The factual reality is we had and have more than two-thirds of the property, specifically 77 percent, with agreements. But the contracts weren’t signed because of Prop. 98, [and will not be signed] until it’s defeated. Is Proposition 98 an excuse? No, it’s a reality,” he said.

Proposition 99 would have no effect on the development plans.

For more information on the No on 98, Yes on 99 campaign visit For more information on the Yes on 98 campaign visit

Heather Murtagh can be reached by e-mail: or by phone: (650) 344-5200 ext. 105.



Tags: proposition, property, could, would, domain,

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