The domain gang

Voters narrowly rejected Proposition 90, the controversial “Protect Our Homes” initiative, on last November’s ballot. Now legislators and local-government, taxpayer and environmental groups are grappling with a slew of new competing eminent-domain reforms.

Senator Tom McClintock, R-Thousand Oaks, has introduced SCA 1, which would prohibit government from using eminent domain to take private property–be it a home or a business–and give it to another private entity. Assembly member Mimi Walters, R-Laguna Niguel, has introduced similar legislation.

McClintock took up the cause of eminent-domain reform following the U.S. Supreme Court Decision of Kelo v. the City of New London in 2005. That’s when the court upheld the right of New London, Conn., to take several homes and give them to a private developer in order to build a more lucrative waterfront development. The Kelo decision elicited outrage on the right and the left.

The senator supported Proposition 90, backed by wealthy real-estate developer Howard Rich, which would have prohibited the kinds of “private to private” transfers of property on display in Kelo. But Prop. 90 also would have gone much farther in limiting government’s ability to make land use or other regulations that affected property values.

The proposition was defeated by a coalition of local governments (who spent over $14 million opposing) and environmental groups. The measure even turned off some conservatives like Senate Minority Leader Dick Ackerman, who worried the measure would “open a Pandora’s Box of new lawsuits” and “eliminate good land-use planning with the bad.”

Now, some the same groups that opposed Proposition 90 say the Republican-authored measures would go too far.

“The Walters and McClintock bills would prevent government officials from getting rid of crack houses or liquor stores where neighborhoods have serious problems,” said Kathy Fairbanks, spokesperson for a coalition of local government, environmental and homeowner groups pushing an alternative version of eminent-domain reform.

Led by the League of California Cities, the coalition is taking a two-pronged approach:

This week, they are putting the final touches on a constitutional amendment that, if passed by two-thirds majorities in both houses of the Legislature, could go before voters sometime in 2008. The bill had not yet been introduced as of Wednesday.

The legislation would prohibit the taking of owner-occupied homes for any use other than a public use, and also would increase protections for small businesses–requiring government to pay 125 percent of fair market value for property taken by eminent domain. But the legislation would not prohibit government from turning such property over to another private entity.

The League of Cities also is backing a simpler ballot measure that only protects homeowners in owner-occupied homes from eminent domain. That measure acts as a sort of insurance policy in case the Legislature fails to pass its legislation.
The League has the tentative support of the Howard Jarvis Taxpayers Association, and the League of California Homeowners.

“We have a litmus test. We’ll support any bill that provides a constitutional amendment and iron-clad protections for homeowners,” said Jon Coupal, president of the Howard Jarvis Taxpayer’s Association. Coupal said his organization is also supporting the McClintock and Walters legislation.

But the Jarvis group has its own insurance policy–it has crafted yet another ballot measure that would prevent government from taking private property and transferring it to another private party.

But the Jarvis initiative goes even farther than the McClintock and Walters bills in that it would require government to pay damages for “actions by a public agency denying reasonably expected economically viable or productive uses of real property by the owner.”

Coupal said the initiative wouldn’t affect the vast majority of local government land-use planning. But environmentalists already are comparing the Jarvis initiative to Proposition 90.

“It’s a really terrible definition of ‘damage,'” said Bill Allayaud, director of Sierra Club California. He argued that the initiative would open the door to lawsuits from developers who aren’t allowed to build new housing developments. “It’s called land-use speculation. This would greatly limit the ability of government to change their mind about a General Plan designation or a zoning designation. “

Allayaud likewise dismissed McClintock’s bill as being “anti-government.”
“Tom McClintock doesn’t like government doing anything. He’s a libertarian.
“We think redevelopment and the use of eminent domain have a place in revitalizing downtowns. It’s cleaning up true blight, strengthening cities and regenerating business,” he added.

The Sierra Club is supporting the League of Cities proposals.
“The same coalition who opposed Proposition 90 we hope will support our legislation,” Fairbanks said. “We expect to have bipartisan support–labor groups, conservative groups, you name it.”

But Coupal has his doubts that the League’s legislation will win over many Republicans without more protection for small businesses. Getting a two-thirds vote “looks very difficult,” said Coupal.

Contact Cosmo Garvin at

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