Contra Costa Times, October 17, 2006

Behind Proposition 90's land-use legalese is an abiding societal dilemma: When do the rights of the community trump the rights of the individual?

Initiative proponents say government is too heavy-handed and property owners are unfairly bearing the costs of community amenities such as open space and wildlife habitat.

Prop. 90 would bar governments from taking private land, through a legal process called eminent domain, for the purposes of turning it over to a private developer. And it would force local agencies to pay landowners for broadly defined losses that result from new land-use laws unless they are necessary for public health and safety.

"If the community wants a benefit, the community has to pay for the benefit," said Adrian Moore, vice president of the Los Angeles-based Reason Foundation. "The fact that people feel entitled to tell everyone else around them what they can do with their land is the reason we have Prop. 90."

But a coalition of unlikely bedfellows, ranging from the League of Conservation Voters to the California Chamber of Commerce to the California Farm Bureau, call the measure a disaster for communities, taxpayers and the environment.

"This measure will make the protection of natural resources and our communities completely impractical for California agencies at all levels," said League of Conservation Voters President Tom Adams. "No one likes eminent domain abuse, but the proponents are using it as a poster child to enact an extremist agenda that an overwhelming number of Californians do not support."

In truth, the opposition is largely unconcerned about the proposition's eminent domain restrictions, which would largely impact communities involved in the redevelopment of blighted areas.

In Pleasant Hill, for example, the city used eminent domain to obtain the final parcels required for its new downtown commercial row. If Prop. 90 passes, cities could no longer use eminent domain to assemble land for private developers but must rely solely on the willingness of landowners to sell. Agencies could still use it for publicly owned projects such as roads.

Instead, critics are focused on the initiative's requirement that government pay landowners for losses related to new regulations.

Open space and wildlife protections would disappear, they predict, because local agencies already struggling to pay for the land would be even more unlikely to raise enough money to pay for lost profits.

Local governments, they say, would be forced to approve developments that residents don't want and waive conditions designed to alleviate impacts or pay owners millions of dollars.

Cities would no longer revise zoning and master plans, they say, in order to avoid changes that would trigger claims and lawsuits.

And governments, they say, would find themselves tied up in court for years and forced to pay millions in legal fees as agencies and landowners seek court interpretations of the proposition's language.

"This measure would seriously undermine the ability of California communities to plan their futures," said Vivian Kahn, Bay Area planner and chairwoman of the California chapter of the American Planning Association's Prop. 90 task force.

The measure will not, she said, preserve homes despite its title, "Protect Our Homes."

"People forget that the value of their property increases when good planning exists," Kahn said. "A house is worth more if it's next to a park and good schools than if it's next to a billboard or a gravel pit. If you make decisions that are for the good of the community as a whole, it benefits everyone."

The opponents' characterizations are both specious and inaccurate, countered San Francisco-based Pacific Research Institute author Steven Greenhut in his analysis of the measure, "Righting Property Wrongs."

Current environmental laws are not affected, legitimate planning will continue and the threat of lawsuits, he wrote, is overstated.

"Locals would still have control over land-use and regulation but they would no longer be allowed to abuse the Fifth Amendment," he wrote. "That would be an enormous improvement."

Prop. 90 is part of a national property rights rebellion that gained momentum after last year's Kelo vs. New London U.S. Supreme Court decision. The justices ruled in favor of the city, which used eminent domain to seize land from homeowners in a depressed area and turn it over to a developer for economic development.

The ruling inspired dozens of property rights initiatives.

Two dozen states have enacted laws this year that bar or restrict eminent domain and others are pending.

In addition to California, voters in three other western states -- Arizona, Idaho and Washington -- will consider similar property rights measures in the midterm election. Measures in Nevada and Montana have been partially or wholly invalidated due to challenges, and their status is uncertain.

Of these, Washington's measure is considered the most restrictive. Unlike California, its measure applies retroactively and includes personal property such as cars and pets.

Most of the initiatives have been bankrolled by New York Libertarian Howard Rich.

In the eight states with initiatives, Rich-led organizations provided 88 percent of the funding, according to the Center for Public Integrity. In California, Rich's groups have contributed $3.3 million of the $3.6 million collected.

Both sides point to Oregon as the model for their viewpoints, a state where voters passed a similar measure in 2004.

Proponents say Oregon's Measure 37 is working precisely as it was intended and the sky hasn't fallen.

"Measure 37 is still overwhelmingly popular," said Moore with the Reason Foundation. "Some people haven't liked the outcome because they can't use law anymore to stop people from doing something they don't like unless they are willing to pay."

But critics say the measure will potentially cost Oregon taxpayers billions and deprive residents of any local say over what happens in their towns.

Oregon landowners have filed more than $5 billion in claims for lost property value. That includes $200 million for an owner who wants to build a pumice mine, geothermal energy plant and vacation resort within the Newberry Crater National Monument.

Near Portland, critics blame Measure 37 for forcing local officials to approve a gravel mine next door to a suburban neighborhood. The county didn't have the money to pay the landowner for the loss of potential profits from the gravel mine, as the measure required, so it was approved.

"That's nice for the mine owner but what about the rights of the neighbors? Fairness ought to go both directions," said Eric de Place with Sightline Institute, a Seattle-based environmental sustainability group. "Planning laws may not be perfect, but when one landowner can extort his community and circumvent the will of the community, it's not a good idea."

Lisa Vorderbrueggen covers politics. Reach her at 925-945-4773 or lvorderbrueggen@cctimes.com.

Many East Bay redevelopment agencies have relied on eminent domain, which allows government to legally take ownership of private property and turn it over to a private developer -- even if the owners don't want to sell or don't agree on a price -- after paying the owner what a court sets as the fair market value. If voters pass Proposition 90, agencies may no longer use eminent domain in this way. Here are a few examples of projects that involve the use of eminent domain.

• San Pablo leaders voted in 2005 to use eminent domain to take possession of a mobile home park after negotiations with the owner stalled. The city and the owner eventually agreed to a purchase deal without going to court. The city was assembling property for 200 units of market-rate modular housing.

• Hercules leaders voted this spring to use eminent domain to acquire property owned by Wal-Mart in order to stop the retailer's plans to build a store there.

• After negotiations fell through in August, Livermore school district officials voted to use eminent domain to acquire a funeral home on land on which they wanted to build 10 new science classrooms.

• Concord used eminent domain to assemble land for the upscale, 259-unit Legacy Apartments downtown, which opened in 2003.

• Alameda used eminent domain earlier this year to seize a downtown theater and turn it over to a developer with plans for a cineplex.

USES OF EMINENT DOMAIN

PROPOSITION 90

• M&L Hardware went out of business after Oakley used eminent domain to seize adjacent property for a highway widening project. The owner says the construction and lack of access contributed heavily to his company's demise.

• Pleasant Hill used eminent domain in the early 1990s to clear the way for the city's 27-acre downtown complex, which includes a movie theater, shops, homes, offices and restaurants. The city eventually took two property owners to court and negotiated settlements with 28 others under the threat of eminent domain.

• Contra Costa County used eminent domain in the mid-1990s after officials were unable to purchase three of 25 parcels needed for the North Richmond Town Center, a mixed use neighborhood with a health center, housing and retail. Several of the properties were entangled in fights among heirs.

• Contra Costa County used eminent domain in the 1980s to obtain the final 10 parcels needed for a mixed-use development around the Pleasant Hill BART station. It includes affordable housing, offices and the picturesque Iron Horse Lofts.

USES OF EMINENT DOMAIN

PROPOSITION 90

Property rights initiative

• WHAT IT WOULD DO: Amend the state Constitution to bar government's use of eminent domain in cases that involve seizing property from one private landowner and turning it over to another private landowner, and require public agencies to pay property owners for losses attributable to new laws and regulations.

• VOTES TO PASS: Majority

• SUPPORTERS: Conservative property-rights advocates, California Republican Party, California Libertarian Party, Lt. Gov. GOP candidate and Sen. Tom McClintock, R-Thousand Oaks

• OPPONENTS: League of California Cities and California State Association of Counties; League of California Homeowners; California Taxpayers Association; California Small Business Association; California Teachers Association and other labor groups; California League of Conservation Voters and numerous environmental groups; California Chamber of Commerce and other business groups; California Farm Bureau, affordable housing advocates, California Democratic Party