The Prop. 90 Debate
| Evan Halper at the LA Times takes a look at Proposition 90, the eminent-domain measure. Backers of the $37 billion in public works bonds on the November ballot are anxious about how Californians are going to vote — but not on their own proposals. A measure that will appear a few notches down the ballot threatens to undermine the package hatched by the governor and Legislature to shore up levees, repair and expand freeways, and build schools and affordable housing. Even if voters approve the borrowing measures — Propositions 1A through 1E — proponents say infrastructure improvements could be stymied if Proposition 90 also passed. That measure, sponsored by property rights advocates, would restrict the government's ability to seize homes and businesses for development. Local governments, school districts, water agencies, transportation authorities and housing groups have been studying the potential effect the property rights measure would have on their ability to move ahead with projects envisioned in the public works package. Many have concluded that it would throw their plans into disarray. Interestingly, Prop. 90 is the only ballot measure Gov. Schwarzenegger has yet to take a public stand on, even as interest groups are saying the measure could torpedo much of his signature bond package. |
posted by Shane Goldmacher at 9:20 AM
Comments on "The Prop. 90 Debate"
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Anonymous said ... (3:37 PM) :
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Anonymous said ... (9:51 AM) :
post a commentHere's an interesting take on Prop. 90 from Oregon - the home of Measure 37.
Short Summary:
I am supporting Proposition 90 from the perspective of a small-business owner and a Democrat. The real beneficiaries will be those who are least able to afford legal representation and those without political influence.
Under the status quo in California, the City of Arcadia was allowed to condemn a clean-functioning restaurant to transfer it over to a luxury car dealer and the City of Cypress was allowed to condemn a Church to provide land for a Costco
Eminent domain also affects non-property owners, including tenants, small businesses with leases and their employees.
Proposition 90 addresses fairness issues by giving small home and business owners the same protection as those who are accused of violent crimes -- a jury trial. After all, the only crime that a small business or homeowner committed was being in the way of a wealthy developer. Finally, Proposition 90 allows for public uses of eminent domain, provides for health and safety exemptions and will be interpreted by the California state legislature, which will prevent any of the "chicken little" scenarios that are described by the opponents.
Expanded Analysis:
I am one of the original signers of Proposition 90. I support Proposition 90 from the perspective of a small business owner and an active Democrat who no longer has any personal or financial stake in the outcome of this Proposition. Because I have been involved in a challenge to the use of Eminent Domain for Private Development, I have met with and sometimes even employed some of the best Eminent Domain attorneys in California. I have sought out their expert advice on Proposition 90 early. These attorneys only stand to lose business if Proposition 90 passes and yet they are supporting it. I was also part of a 5 city, nationwide study on Eminent Domain conducted by the non-partisan General Accountability Office this year as reported in the Los Angeles Times. (1)
A Yes vote on Proposition 90 will reform the use of Eminent Domain by restoring the original meaning of property ownership, fundamental due process, and re-establishing equality without raising costs to tax payers or hindering development.
Proposition 90 will also protect non-property owners such as tenants, small businesses with leases, and their employees who are also forced out when Eminent Domain is used by local government in the context of Private Development.
Property ownership is a core fundamental right both in the US and California Constitutions. But like any core Constitutional right or legal protection, the real beneficiaries are those least able to afford legal representation and those without political influence.
The basic enforcement of these rights helps to somewhat level the playing field between the privileged and politically connected and those with less. It also establishes confidence and predictability that makes our economy work.
Without this enforcement, we wind up with a reverse Robin Hood where the government intervenes to confiscate property without permission of the owner and transfer it over to another private owner with more money. It is counterintuitive to any sense of Justice and Equality and is ripe for corruption.
KELO v. NEW LONDON, CT
Assoc Justice Sandra Day O'Connor pointed out this very fact in her dissenting opinion on the Case of Kelo v. New London:
"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result."
Proposition 90 is very simple. It is a little over one page long. I encourage you to read for yourself both the actual language of the Proposition and Justice Sandra Day O'Connor's dissenting opinion in the Kelo case.
FOLLOWING THE MONEY
The core opponents of Proposition 90, the CA League of Cities, the California Redevelopment Association, and their Platinum partners the development community (Developers, Bond Firms, Consultants, and Builders) have followed the play book from the "Wizard of Oz" and have put out some very honorable groups as their face of the opposition and have provided them with talking points.
The Yes on 90 side is being out spent 5 to 1 as is by only side being heard in TV, radio ads, and money. The main seed money for the Yes side came from Howard Rich a New York developer and Libertarian who has no real estate assets in California.
I would like to address some issues raised during the debate on Proposition 90.
OPPONENTS CLAIM THAT REFORM IS NEEDED BUT ARE ON RECORD TO OPPOSING ANY REFORM MEASURES
The opponents to Prop 90 claim that the use of Eminent Domain for Private transfers needs reform, but that Prop 90 goes too far. This is quite hypocritical and disingenuous because the CA League of Cities is on record opposing each and every Eminent Domain reform measure proposed at the State level including by Democrats Kehoe and Torlakson. Kehoe proposed tightening up the definition of blight. But the CA League of Cites weakened Kehoe’s original proposal. The CA League of Cities and the California Redevelopment also sided with the City of New London against homeowner Susette Kelo when the City sought to transfer her property so that housing and commercial property could be built to support Pfizer Pharmaceutical.
MEAURE 37 (OREGON 2004) FALSE CLAIMS OF PAYOUTS:
The opponents refer to a law passed in Oregon in 2004 called Measure 37. They say that it cost Oregon taxpayers millions and extrapolate the costs based on population to California saying that Prop 90 will very costly to California taxpayers. However the opponents left out several important facts:
1. Even though hundreds of claims were filed, it never resulted in payouts according to Bob Stern from the non-profit, non-partisan Center for Governmental Studies and was featured on KCET's Life and Times coverage of Prop 90.(2) Mr. Stern also said that based on his analysis, Proposition 90 would not cost tax payers much money. (He did imply that it would make Cities more cautious to zone changes)
2. Proposition 90 is different from Measure 37 in that Prop 90 is prospective, not retroactive. No claim has been filed to any zone changes made after the passage of Measure 37 in Oregon.
GOVERNMENT HAS THE BURDEN OF PROOF FOR PUBLIC USE
RIGHT TO TRIAL BY JURY
Under current California Redevelopment law, there is presumptive conclusion that the government is right even when a Redevelopment zone is twenty years old and the area is booming. This defies the 14th Amendment to the US Constitution that provides basic Due Process protections.
Why shouldn't innocent property and small business owners be afforded that same legal protection that is granted to those accused of violent crimes? A trial by a jury of your peers and the burden of proof being on the government, not the accused is a basic right in all other parts of the law. After all, the only crime that a small business or homeowner committed was being in the way of a wealthy developer.
IF THE PROPERTY CEASES TO BE USED FOR THE STATED PUBLIC USE, THE FORMER OWNER SHALL HAVE THE RIGHT TO REACQUIRE THE PROPERTY FROM THE GOVERNMENT FOR FAIR MARKET VALUE
This addresses a real world situation that recently occurred in South Los Angeles. Vaughan Benz is a furniture manufacturer that was forced by the city to sell its property to make way for an animal shelter, only to see the city propose instead to sell the site to a competing furniture maker.(1)
NARROWS THE MEANING OF PUBLIC USE. PROHIBITS TAKINGS EXPECTED TO RESULT IN TRANFERS TO NON-GOVERNMENTAL OWNERS ON A ECONOMIC DEVELOPMENT OR TAX REVENUE ENHANCEMENT GROUNDS…
This is the direct Eminent Domain Reform that corrects existing California Redevelopment Law and addresses issues raised in the Kelo decision as described in Assoc Justice O'Connor's dissenting opinion.
GRANDFATHERING, FAIRNESS, AND THE REAL WORLD
The idea of grandfathering is a well established and makes the process fair and stable for the small property and business owner. Ironically, the core opponents of Proposition 90, the California League of Cities and the Development Community are pushing for "up-zoning" throughout the State to absorb predications of increased population.
PROPOSITION 90 HAS PROTECTIONS FOR THE TAXPAYER AND THE GOVERNMENT
Proposition 90 specifically allows for the Public Use of eminent domain. It also allows for health and safety exemptions. Proposition 90 will be interpreted by the California State Legislature, which will prevent any of the "chicken little" scenarios that are described by the opponents.
IMPORTANT SUPPORTERS OF PROPOSITION 90
The Black Chamber of Commerce.
League of United Latin American Citizens, Region 7 (Long Beach)
National Federation of Independent Business (Small business group with 600,000 members)
Hollywood-Highlands Democratic Club
Footnotes:
1. "U.S. Targets L.A.'s Seizure of Property," Los Angeles Times, June 14, 2006
2. KCET – Life and Times, "War Over Land Rights," November 2, 2006 broadcast date.