Part one.June 23 Second Anniversary of Supreme Court’s Kelo decision

June 23rd marks the second anniversary of the US Supreme Court’s 5-4 Kelo Decision. That action undermined the protection we thought existed in the Fifth Amendment of the US Constitution where the last 12 words read: “nor shall private property be taken for public use without just compensation.”

While numerous other states have passed Legislation to protect private property rights in the aftermath of that disastrous ruling, voters in CA rejected Proposition 90, the Protect Our Homes Initiative which some felt went too far.

Well. It’s new year and everyone knows that this concern must be dealt with. At the current time there are two initiatives in motion to remedy this cancer. Having heard the expression “buyer beware” I caution the voters on the CA League of Cities sponsored proposal being promoted by LA Assemblyman Hector De La Torre. Earlier this year, Jon Fleischman, publisher of the Flash Report, labeled this effort a “Trojan Horse” and he is 100 percent accurate in that assessment. This Measure was drafted to thwart the current effort co-sponsored by the Howard Jarvis Taxpayers Association, The CA Farm Bureau Federation and the Alliance to Protect Private Property Rights that we plan to qualify for the 2008 ballot. This Initiative is currently entitled the “CA Property Owners & Farmland Protection Act.” I say currently because the Sec of State can alter the title of Initiatives. Note: This version was amended last month to address some initial concerns of the proposal.

Let me share four points in the next few posts starting with a partial comparison of differences between Prop 90 and this current Initiative follow:

JUNE 19TH NOTE: THE FOLLOWING “TEXT RELATED TO THE IMPLICATION OF PROP 90 REFLECT STATEMENTS AND/OR ANALYSIS PROVIDED BY THE NO ON PROP 90 CAMPAIGN AND DO NOT NECESSARILY REFLECT THE VIEWS OF PROPONENTS OF THE CALIFORNIA PROPERTY OWNERS AND FARMLAND PROTECTION ACT.”

A major stumbling block with Prop 90 was the “regulatory takings provision.” which “required the government to pay compensation whenever planning or zoning regulations limit the types of uses that may be built or the height of such structures, Prop 90 would have seriously constrained the ability of government to regulate land use. These “regulatory taking” provisions were among the most controversial aspects of Prop 90, and opponents claimed they would have dramatically increased the cost of government and the volume of litigation.””

There are “no such provisions in the California Property Owners and Farmland Protection Act.”

Abandonment Clauses: “Prop 90 gave the original owner a right to re-purchase his property at current fair market value if the stated public use was abandoned. Prop 90 was criticized (1) because it created this right in perpetuity, extending it to all future heirs and beneficiaries, thus requiring the government to locate and determine the fractional interests of potentially hundreds of individuals should it ever abandon it’s original stated use, and (2) because it gave government an incentive to seize property at the start of a market upswing, than abandon the property after profiting from the appreciation.”

….”if the stated purpose for the property is abandoned, the property will be offered to the original owner at the price at which it was taken. It will also be taxed at the pre-condemnation value. However, the government does not need to track down heirs after the original owner’s death.”

Public Projects. “Prop 90 threatened government’s ability to use eminent domain to acquire property for legitimate public projects such as roads, schools, parks and libraries, including voter approved projects authorized by existing state and local bonds, by driving up the cost of such property through it’s requirement that the property be valued not at its current use, or even its zoned potential, but at the “highest and best use.””

“This measure maintains the current standard of “fair market value.””

Property Owners. Could have threatened property values in many ways: Prop 90 would have made community projects such as schools, parks and public safety facilities cost prohibitive. Prop 90 could have relieved developers from providing necessary infrastructure, such as widening roads, to accommodate the population growth that comes with new subdivisions. And Prop 90 would have made it difficult to prohibit incompatible uses from locating near homes, bringing with it noise, traffic, litter, overspray, or late-night operations.”

This new Initiative “Does not include Prop 90’s “highest and best use” measure of compensation, or its “regulatory taking” provisions, both of which threatened neighborhood projects, public infrastructure, and land use planning, essential to quality of life and the protection of property values.”

Health and Public Safety. Prop 90 “could have limited local government’s ability to condemn property that is the sight of criminal activity, such as a meth lab or house of prostitution.”

With the new Initiative “public agencies maintain the ability to abate public nuisances and close down sites of criminal activity.”

Environment. Prop 90 “threatened zoning restrictions and public projects that government uses to protect open space and wetlands, and to reduce traffic and urban sprawl.”

This new Initiative “Does not affect governments’ ability to implement land-use planning or zoning restrictions.”

My next post will cover other key differences between Prop 90 and the proposed 2008 CALIFORNIA PROPERTY OWNERS AND FARMLAND PROTECTION ACT.”

Larry Gilbert Orange County Co-Director, Californians United for Redevelopment Education and member of the Castle Coalition.