No private property protection in California

Proposition 90 would have restricted eminent domain to public "use” such as for schools, libraries or roads and would have prevented local governments from forcing owners off their property, which is then usually handed over to private developers, often "low-balling” the property value. Currently, the property owner often must spend an enormous amount of money and time to sue the city for just compensation and moving costs. Proposition 90 would require the government to reimburse the owner for moving costs, and any attorney fees incurred as a result of unfair property valuation.

Proposition 90 would have put the burden of proof on the government to show the necessity of seizing private property. Because of the failure of Proposition 90, government can also "downsize” private property by changing the zoning. For example, if someone bought a house with land legally viable for building other units, the government can change the zoning to prevent this, even the zoning allowed at the time of purchase. This new regulation will reduce the property’s value, and also eliminate the property’s original potential, for example, the potential of subdividing. Worst of all, the government is not required to compensate the owner for the economic loss. Proposition 90 would have enacted mandatory compensation. Put simply, Proposition 90 would have quelled "Kelo v. New London,” a case in which the U.S. Supreme Court ruled in 2005 that no longer is eminent domain limited only to public "use;” local governments can now seize your property and hand it over to private developers to erect things such as theaters, parking lots, and office complexes, even though the Bill of Rights states that eminent domain is to be invoked for public "use” only. This activism of the Supreme Court has caused many states to put property protection propositions on the ballot. But there should be outrage at the California legislature; since the Kelo decision, five separate measures to prevent eminent domain abuse have been defeated, each in their first policy committee hearing.

Assemblyman Gene Mullin, D-South San Francisco, tried to place a "short-term” moratorium on eminent domain on owner-occupied, single-family homes, but left apartments, condos and businesses open to government seizure. If only one of these measures became law, Proposition 90 would not have even been necessary. What is even more confounding is that the California Democratic party, which touts itself as the defenders of minorities, the poor and the elderly, lobbied against Proposition 90. The very same people the Democrats claim to protect are the ones who are the usual victims of eminent domain abuse.

The worst thing about Proposition 90 were the invalid claims and doomsday scenarios of the labor, government and environmental groups which opposed it, including the League of Women Voters, League of California Cities, Sierra Club and police and firefighters’ unions. One illogical claim was Proposition 90 would make pollution a property right. Wrong. Proposition 90 would not have affected any existing pollution laws, nor modification thereof. It cannot constrain governments from enacting new pollution laws. Opponents also claimed the "taxpayer trap” scenario, and threat of more lawsuits. The California State Firefighters’ Association even went as far to say in a mailer that it would cost taxpayers $1,200 per household. They tried to compare it to Oregon’s Measure 37, which relieves property owners affected by government’s "regulatory taking,” but there are differences. Measure 37 was a "retroactive” measure and allowed landowners to file claims on regulations already in place for decades. Proposition 90 would have applied only to future regulations. Another outrageous claim was Proposition 90 would restrict governments’ ability to regulate businesses like adult bookstores and strip clubs, and would prevent the eradication of "slums,” thereby decreasing public safety. Invalid.

Proposition 90 contained the following provision: "Nothing in this section shall prohibit the use of condemnation power to abate nuisances such as blight, obscenity, pornography, hazardous substances or environmental conditions, provided those condemnations are limited to abatement of specific conditions on specific parcels.” Thus, if there is a street of well-kept homes with the exception of one, under Proposition 90 the government can condemn the "problem” home; the rest of the homes would be safe. Interestingly, city leaders across California banded together to oppose Proposition 90.

Orange County Supervisor Chris Norby, an eminent domain expert, told me despite the vast array of financially empowered interest groups violating property rights by opposing Proposition 90, support was still 47 percent, so many people do want property protection. And policy analyst Lenny Gilroy noted the way Proposition 90 was written (by state officials) on the ballot was misleading. He heard there may be another measure in 2008, and perhaps the wording can be adjusted then. If the Legislature refuses to pass a property protection law, perhaps there will be another citizen-initiated measure. Arizona’s measure, which won by a wide margin, could be used as a model. And regarding the "regulatory taking” clause of Proposition 90, perhaps there could be two options for government: either financially compensate property owners who sue, or give them a "waiver,” exempting then from the regulation, thereby reducing taxpayer burden.

I believe that new language should be added to any new law or constitutional amendment regarding eminent domain – "Eminent domain shall be used only for public use and ownership, such as ownership of schools, libraries, etc. ... by virtue of taxpayer dollars ...” thereby making the definition of eminent domain crystal clear. This will hopefully prevent lawsuits against the government by those who are generally the victims of eminent domain, those unable to defend themselves.

Barbara LaRaia lives in San Bruno and has written and spoken publicly against eminent domain abuse. She can be reached at barbaralaraia2004@yahoo.com.