Daniel Weintraub: Proposition 90 is the sleeper in this fall's lineup
By Daniel Weintraub - Bee Columnist
Tuesday, October 24, 2006
Like the surprise ending to a long, dreary novel, Proposition 90 sits at the very end of this fall's crowded California ballot, a subtle plot twist that seems out of place among the more obvious turns that precede it.But take notice. This unassuming proposal is the most important question voters will confront on Nov. 7.
Polls show that few voters know what Proposition 90 is about, much less understand its significance. No wonder, given that relatively little money has been spent so far communicating messages for and against the initiative.
And unlike some of the other measures on the ballot, Proposition 90 comes with no easily identifiable target, such as the tobacco industry or the oil companies.
The proposal's promoters are selling it as a reform of eminent domain, the process governments everywhere use to force the sale of private property for public purposes. But it is much more than that. It is a sweeping change in the state constitution that could potentially affect just about every new state or local government regulation adopted in the future.
The part of Proposition 90 that deals with eminent domain is simple enough. It would limit the use of eminent domain to sales needed for a specific public use, such as a road or a school, or to remove a narrowly defined nuisance, such as an abandoned home or business that has become a danger to the community.
Proposition 90 would prohibit government from forcing the sale of private property and then selling that property to another owner for private use. Government would have to retain ownership of any property it took through eminent domain, and if it later decided to sell the property, the original owner would have first call on buying it back.
The measure could also change the amount that government is required to pay a property owner when it forces a deal on an unwilling seller. Under current law, government must offer "just compensation" in such transactions, a term typically defined to reflect fair market value. Proposition 90 would require government to pay owners the amount the property would yield in its "highest and best use" if the government left the property alone.
If this were all that Proposition 90 did, it would still be opposed by city governments and redevelopment agencies. The restrictions on the use of eminent domain would make it more difficult and more expensive for cities to clear rundown blocks for new housing or commercial development. A single owner who wanted to hold onto his or her property could stop an entire project.
That idea, while controversial, has wide bipartisan support, because many people believe that governments abuse their eminent domain powers to force property owners to give up their land. In many cases, local governments force small-business owners or investors to sell their property and then turn it over to big, well-connected developers who make a profit on the deal. Earlier this year, the California Democratic Party supported new limits on eminent domain, and Rep. Maxine Waters, a Democrat who represents a poor, heavily minority section of Los Angeles, has been a major supporter of eminent domain reform.
But Proposition 90 does not stop there. It applies not just to the forced sale of land, but requires compensation for other government actions that might result in a "substantial loss of value" to private property.
Compensation, the proposal says, could be required when the government restricts the kind of uses permitted on a piece of property, or limits access to property or to private airspace. It also would apply to any "statute, charter provision, ordinance, resolution, law, rule or regulation" adopted after Proposition 90 takes effect. In other words, anything government does that could reduce the value of someone's property.
This is a sleeper provision in a sleeper initiative that could strictly limit the ability of government to regulate private business. Even if it applied only to real property, it would call into question future environmental regulations and zoning laws and make many of them prohibitively expensive. But some experts, including the state's nonpartisan legislative analyst, believe that this part of Proposition 90 would apply not just to real property but also to laws and regulations affecting employment conditions, consumer financial protections and other matters where an individual or business could argue that its assets were "damaged" by a government action.
The measure does exempt current laws and regulations, so it wouldn't be applied retroactively, and it appears to exempt actions taken to protect public health and safety. Defining that term, no doubt, would result in some interesting litigation.
Proposition 90 is supported by property rights groups and was bankrolled by a New York-based libertarian activist as part of a national campaign. It is opposed by the California Chamber of Commerce, the California Taxpayers Association, the California Labor Federation, the California Farm Bureau, the Sierra Club and the League of Conservation Voters, among others.
This is a constitutional amendment that could change the face of California government forever. It deserves far more attention than it has received to date.
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