Property rights activists and redevelopment opponents are preparing statewide ballot measures that could greatly limit the use of eminent domain. While it is far from certain that any proposed initiatives will qualify for the November ballot, redevelopment officials, planners and local government officials are extremely concerned about the measures.

As of late December, four initiatives had been submitted to the attorney general’s office for preparation of title and summary. Signature gathering could begin this month. All the measures vary a bit, but their intent is the same: to limit government’s ability to take private property via eminent domain.

The ballot measures feed on the popular sentiment stirred by the U.S. Supreme Court’s decision in Kelo v. City of New London (see CP&DR, August 2005, July 2005). By a 5-4 vote, the court upheld a Connecticut city’s taking of several homes to make way for an economic development project. Even though Kelo appears to have carved no new legal ground, at least in California, public opinion has been extremely negative. Local government officials now believe that their longtime opponents in the anti-redevelopment and property rights lobbies will use that public opinion to their benefit.

“These measures clearly would hurt cities’ ability to build housing and provide the economic development projects that we so badly need,” said Megan Taylor, spokeswoman for the League of California Cities.

“We’ve been poring over the details,” said California Redevelopment Association Executive Director John Shirey, “seeing what they really mean and whether there are any ambiguities.”

Although longtime redevelopment opponents, led by Orange County Supervisor Chris Norby, are backing at least some of the initiatives, the measures would affect use of eminent domain by any pubic agency — not simply redevelopment agencies.

One proposal, called the California Property Owners Protection Act, comes from Norby, state Sen. Tom McClintock (R-Thousand Oaks), and Jon Coupal of the Howard Jarvis Taxpayers Association. The measure would prohibit the government from taking private property for private use. The measure defines private use as:

“1. Transfer of ownership or use of private property to any person or entity other than a public agency;

2. Transfer of ownership or use of private property to a public agency for the same or a substantially similar use as that made by the private owner; or

3. Use which provides an economic benefit to one or more private persons at the expense of the private property owner, such as a limitation on the amount a property owner may charge another private person to purchase or use his or her property.”

The proposed initiative also would require that when the government does take private property via eminent domain, the property owner would have immediate access to money deposited with the court by the government, even while the property owners challenges the determination of fair market value.

A second constitutional amendment is backed by Norby, McClintock, Coupal and Assemblyman Doug LaMalfa (R-Richvale). Called The Homeowners and Private Property Protection Act of 2006, the measure states, “Private property shall not be taken or damaged without the consent of the owner for purposes of economic development, increasing tax revenue, or for any other private use, nor for maintaining the present use by a different owner.”

A third measure was submitted by Douglas McNea, who is running against U.S. Rep Zoe Lofgren (D-San Jose), and Karin Hipona, a school board candidate in Daly City. Both spoke about redevelopment and eminent domain abuse during a legislative hearing in November (see CP&DR Capitol Update, December 2005). Their measure is called the California Eminent Domain Limitation Act and hits specifically on development of housing and jobs.

The proposed initiative states in part, “The power of eminent domain shall not be used for economic development. The term ‘economic development’ means taking private property, without the consent of the owner, and conveying or leasing such property from one private person or entity to another private person or entity for commercial enterprise, or to increase tax revenue, tax base, employment, housing density or general economic health.” The initiative does contain exceptions for uses such as hospitals, railroads and incidental private uses “such as a retail establishment on the ground floor of a public building.”

A fourth initiative, The Protect Our Homes Act, was filed just before Christmas by Anita S. Anderson, who was not identified in the filing. The measure is similar to the first two, with a few twists, including this one: “Unpublished eminent domain judicial opinions and orders shall be null and void.”

All of the measures must be reviewed by the attorney general’s office and the Legislative Analyst’s Office. Among the things the LAO is looking at are the provisions in all four measures that appear to treat “damage” to private property just the same as the taking of private property. Defining “damage” could be tricky, as one might argue that land use regulations damage a person’s property.

The abundance of proposed initiatives suggests that property rights advocates and redevelopment opponents have given up on the legislative process, at least for now. Nevertheless, lawmakers are poised to push forward a number of bills related to redevelopment and eminent domain, and the California Redevelopment Association is working on a legislative package of reforms, according to Shirey.

An intense focus on eminent domain and related activities has become commonplace in many states since the Kelo decision, said Steven Preston, San Gabriel deputy city manager and chair of the American Planning Association’s Legislative and Policy Committee. He pointed to dozens of bills in statehouses across the country that would impose new restrictions on government powers. Some of the bills have been acted, such as SB 7 in Texas, which prohibits the use of eminent domain for economic development purposes or to confer a benefit on a private party.

“We’re not alone and we’re not even in the vanguard of how redevelopment practices are being pursued,” Preston said.

Like other organizations, the APA’s California Chapter has not taken a formal position on the proposed initiatives, and Preston noted that planners are not in uniform agreement about the use of eminent domain. Clearly there is concern, though.

“I think everybody in the planning profession believes good redevelopment, done properly and based on a comprehensive plan that the community agrees on, is a good thing,” Preston said.

Contacts:
John Shirey, California Redevelopment Association, (916) 448-8760.
Steven Preston, American Planning Association, (626) 308-2810.
Attorney General’s list of initiatives: http://caag.state.ca.us/initiatives/activeindex.htm