OPPOSES Proposition 90--Government Acquisition, Regulation of Private Property Initiative Constitutional Amendment BACKGROUND | PROPOSAL | ANALYSIS | FISCAL EFFECTS | SUPPORTERS/OPPONENTS RESOURCES | SUMMARY POINTS | GET INVOLVED | PRINT FLYER

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Proposition 90 is an initiative which would amend Article I, Section 19 of the California Constitution which governs eminent domain.

Eminent domain is defined by Webster as "that superior dominion of the sovereign power over property within the state which authorizes it to appropriate all or part of the property for a necessary public use, reasonable compensation being made." In 2005 the United States Supreme Court ruled (Kelo v. City of New London) that the use of eminent domain to transfer land from one private owner to another to further economic development within a redevelopment area qualified as a permissible "public use" under the Takings Clause of the Fifth Amendment.

In addition to the power of eminent domain, government under its police power has authority to regulate land use and adopt many kinds of laws and regulations affecting private property. For example, government requirements can reduce the value of private property through laws limiting development on a homeowner's property, requiring industries to change their operations to reduce pollution, or restricting apartment rents. In general, that authority can be implemented without compensation to owners of private property as long as some viable economic use of the property remains. Leaving a property owner without an economic use is referred to as a "taking."

The measure would become law upon voter approval by a simple majority. Proposition 90 includes the following major provisions:

• Private property may be taken only for a stated public use and only when just compensation has been paid.
• Property taken by eminent domain shall be owned and occupied by the condemner or another governmental agency utilizing the property.
• Unpublished eminent domain judicial opinions or orders shall be null and void.
• If a public use is determined, the property shall be valued at its highest and best use without considering any future dedication requirements imposed by government.
• In all eminent domain actions, "just compensation" shall be defined as that sum of money necessary to place the property owner in the same position monetarily, without any governmental offsets, as if the property had never been taken. . . . "fair market" value shall be defined as the highest price the property would bring on the open market.
• Except when taken to protect public health and safety, "damage" to private property includes government actions that result in substantial economic loss to private property. Examples of substantial economic loss include, but are not limited to, the downzoning of private property, the elimination of any access to private property, and limitations on the use of private air space.

Proposition 90 responds to the general public sentiment that opposes the 2005 U.S. Supreme Court decision. However, Proposition 90 goes far beyond the prohibition of using eminent domain for transferring property to private parties. It would affect traditional uses of eminent domain by redefining terms and would significantly undermine land use and environmental, business and other regulations as we know them.

By voiding unpublished eminent domain court decisions, Proposition 90 would be retroactive since it is estimated that at least 99 percent of opinions in eminent domain cases are not published. Unlike eminent domain decisions, only future land use and other regulations would be affected by the proposition.

This poorly written initiative will result in endless litigation and significant costs to the taxpayers. Many of the terms in the initiative are vague or are unclear, and some provisions may be contradictory.

Eminent Domain Provisions

The eminent domain provisions would apply to all public agencies and utilities and all state and local government property acquisitions. It would require government to occupy condemned property or lease the property for public use, and condemned private property must be offered for resale to prior owners or their heirs at current fair market value if government abandons the objectives of the condemnation. By barring governments from condemning or damaging private property to promote other private uses, Proposition 90 addresses the 2005 U.S. Supreme Court decision.

However, Proposition 90 would affect the use of eminent domain even for acquisition of property for public use by requiring increased payments by government agencies and the taxpayers for public works and infrastructure such as schools, roads, utility infrastructure and levees. It does this by redefining "just compensation" of "fair market value" to a complex valuation which would lead to costly litigation and huge windfalls to property owners.

For example, if the condemned land is to be used "for any proprietary government purpose" the property would be valued "at the use to which the government intends to put the property." Compensation is required even if current law would not permit use of the property in the manner under which the property owner would receive the highest value. The measure also appears to make property owners eligible for reimbursement for a wider range of costs and expenses associated with the property taking than is currently the case.

Definitions are vague and provisions may be contradictory. "Private use" is not defined. It is unclear, for example, if investor-owned public utilities which are private entities with the power of eminent domain would be covered. Definitions of fair market value and the new principles of valuation required by the measure are not consistent.

The "just compensation" provisions would severely limit the ability of governments to provide infrastructure and developers to meet development conditions frequently required as conditions on land use projects. This latter impact has generated opposition from some leaders in the development community.

Takings

Proposition 90 redefines "damage" to private property as including "government actions that result in substantial economic loss . . . " "Substantial economic loss" is not defined, and the definition applies to all private property. This contrasts with the current approach that allows regulation of private property as long as some viable economic use of the property remains.

The damage provisions would apply to future government actions. New laws would be exempt if the government enacted them to protect public health and safety, under a declared state of emergency or as part of rate regulation by the California Public Utilities Commission. The measure provides three examples of government action requiring compensation, as noted above in the last bullet under PROPOSAL. The Legislative Analyst notes, ". . . the broad language of the measure suggests that its provisions could apply to a variety of future governmental requirements that impose economic losses on property owners." Examples of actions that could be affected include animal welfare protection, adoption of general or specific plans, environmental protection for endangered species, historic preservation, minimum wage and worker regulations, zoning, consumer protection measures, gambling prohibitions, adult entertainment restrictions, subdivision map conditions, securities and accounting fraud measures, rent control, usury bans, antitrust and unfair competition laws, and banking regulations. The redefinition of "damage" would be unprecedented in the United States.

An example of how Proposition 90 might work is that if voters passed a measure limiting a new development to 500 houses instead of the proposed 2,000 houses, the developer could demand a payment for the value of the remaining 1,500 houses, even if local community services and infrastructure would be inadequate to support the larger project.

According to the Legislative Analyst's Office, Proposition 90 would cause increased state and local government costs to pay property owners for property acquisitions and for losses to their property associated with certain new laws and rules. The amount of such costs is unknown, but potentially significant on a statewide basis.

For further discussion, refer to the analysis by the LAO in the Voter Information Guide (ballot pamphlet), www.ss.ca.gov/elections/elections_vig.htm

SUPPORTERS Signing ballot arguments for	OPPONENTS Signing ballot arguments against:
Manuel Romero Eminent Domain Abuse Victim	Chief Michael L. Warren, President California Fire Chiefs Association
Bob Blue Eminent Domain Abuse Victim	Chief Steve Krull, President California Police Chiefs Association
Pastor Roem Agustin Eminent Domain Abuse Victim	Edward Thompson, Jr., California Director American Farmland Trust

The rebuttal to the supporters' argument was signed by Kenneth W. Willis, President, League of California Homeowners; Jacqueline Jacobberger, President, League of Women Voters of California; and Chief Michael L. Warren.

Other opponents include the California Professional Firefighters, California Chamber of Commerce, California School Boards Association, the League of California Cities, California Farm Bureau Federation, Sierra Club California, Housing California, California League of Conservation Voters, Planning and Conservation League, and the League of Women Voters of California.

The measure has received major financial backing from the New York-based Fund for Democracy, led by Howard Rich, and a Montana-based political group, Montanans in Action.

Chris Carson, LWVC Government Director, govt@lwvc.org

Janet Brennan, LWVC Land Use Legislative Consultant, landuse@lwvc.org

Charolette Fox, LWVC Natural Resources Director, natural_resources@lwvc.org

Jack Sullivan, LWVC Legislation Director, legislation@lwvc.org

Trudy Schafer, LWVC Program Director/Advocate, 801 12th Street, Suite 220, Sacramento 95814, 916-442-9210, Fax 916-442-7362, advocacy@lwvc.org

Californians Against the Taxpayer Trap/No on 90, 800-628-9075, www.noprop90.com

California Budget Project, More Than Meets the Eye: What Would Proposition 90 Mean for California?, September 2006, www.cbp.org

NO on Proposition 90
Government Acquisition, Regulation of Private Property

• We need to do something to address eminent domain reforms in California, but Proposition 90 is a taxpayer trap. This poorly-written measure is loaded with far-reaching provisions that are unrelated to eminent domain and will harm, not protect, homeowners. It would erode basic laws that protect our communities, our neighborhoods and the value of our homes.
• The hidden provisions in Proposition 90 create a new category of lawsuits that allow landowners and corporations to sue for huge new payouts. These lawsuits and payouts would cost California taxpayers billions of dollars.
• Proposition 90 would fundamentally change our system of representative democracy and put the interests of a few above the well-being of all Californians.
• The wealthy landowners who put Proposition 90 on the ballot want you to believe that Proposition 90 is about protecting the average person from eminent domain. Instead, it would enable large landowners and corporations to demand huge payouts from state and local government just by claiming a law has harmed the value of their property or business.
• For example, if local voters pass a measure to limit a new development to 500 houses, but the developer wants to build 2,000 houses, the developer could demand payment for the value of the remaining 1,500 houses, even if the local community services and infrastructure would be strained by the larger development.
• Communities and the state would have to decide whether to have basic laws to protect neighborhoods, limit development and protect the environment or to pay developers for the right to make those choices.

Note: please adapt this letter to your own community and check your local paper's word limit for published letters.

Editor:

Proposition 90 on the November ballot is disguised as protection for the average person's property. Instead it would enable large landowners and corporations to demand huge payments from taxpayers by claiming a law has harmed the value of their property.

For example, if local voters pass a measure to limit a new development to 500 houses, but the developer wants to build 2,000 houses, the developer could demand payment for the value of the remaining 1,500 houses. Even if the local community services and infrastructure would be strained by the larger development!

Payments like that would reduce resources available for police, fire and other critical local services.

Vote NO on Proposition 90. We shouldn't have to pay to pass basic laws that will protect our neighborhoods, manage development and protect our quality of life.

Sincerely,

(your name)