Prop 90: Good Idea, Bad Initiative

Originally I believed supporting Prop 90 was a no-brainer, after all it is an anti-Kelo, anti-eminent domain initiative supported by our good friend Mimi Walters and the OC GOP. However, as Election Day drew near and I actually started reading my official voter information guide, I realized Prop 90 is a poorly thought out and poorly written initiative that embodies good fundamental ideas but lacks a clear and efficient way to implement them. I believe that private property rights must be protected, but not by an initiative that creates open ended liability for local governments towards many frivolous and time consuming lawsuits, which ultimately will impede economic growth and development.

The language in Prop 90 is too vague, one specific example is how local governments will have to compensate private land owners if any “laws and rules” pertaining to property cause “substantial economic loss” to a private property owner. There is no definition for substantial loss, which means it will be defined by many lawsuits, in many court rooms and by many judges, ultimately using a tremendous number of tax payer dollars.

Additionally Prop 90 will create many loopholes at the taxpayer’s expense. A specific example that comes to mind is San Diego County's 2020 General Plan Amendment, in which many rural properties are appropriately being down zoned from inaccurate residential densities to reflect current infrastructural capabilities. Under Prop 90, these land owners could seek compensation for “paper units” that theoretically existed due to inaccurate zoning but never would have actually been constructed or approved by planning commissions. Once again, the vague language of Prop 90 fails to define a threshold or criteria for property owners to prove their development intentions for their land, thus many more lawsuits will be filed to define how one’s potential economic loss can be quantified.

Lastly, Prop 90 will probably be a moot initiative even if passed, since it clearly breaks the single subject rule for ballot initiatives, dealing with the two separate subjects of an anti-kelo eminent domain ban as well as establishing compensation for a perceived loss in property value due to “law and rules”. Private property rights must be protected, but not by a measure that will create giant loopholes in which taxpayers will pay the expense and that handicaps local government from making any land use changes or rules in fear of endless compensation claims and lawsuits. I hope that Prop 90 fails and a more defined and focused limitation on eminent domain initiative, such as Anaheim’s Measure P, will be on the ballot in two years.

Comments

[Bladerunner]

Another failure by the Governor and the Legislature to get a pure anti-Kelo measure on the ballot. The public is p.o.'d, we get nothing out of SAC, nothing from Dem & GOP $$ interets into financing a clean initiative and so we get 90, warts & all. When you get a vacuum someone will drive their mack truck into it. Unless it goes into a freefall, 90 will pass and then all blame-game fingers will point to Sacramento.

Great Post Seneca...You hit the nail on the head! This is the most poorly written initiative I have seen in a great long while.

[DanC]

and yet this poorly written initiative has support for Rep John Campbell, State Ass. Chuck DeVore and the Team Irvine slate of council candidates, plus Steve Greenhut at the Register. Not too late to change your position folks....

[One Who Knows]

"and yet this poorly written initiative has support for Rep John Campbell, State Ass. Chuck DeVore and the Team Irvine slate of council candidates, plus Steve Greenhut at the Register"

I wonder how many of the above supporters have actually read the text of the measure? Probably Greenhut and DeVore. I suspect the list ends there.

One who knows, I agree, I bet most of the prominant groups supporting this prop have not fully read the initiative.

[stick it to the man]

However there is an element of this proposition, for good bad or indifferent, that gives the voters the opportunity to "stick it to the man"

Because of that I suspect that there will be a lot of voters, even educated voters who are versed on the initiative, that will support it just to send a message. Even if it is a moot initiative that gets bounced in court.

This initiative also reveals the bigger problem in relation to the CA intititive process.

[calwatch]

On the other hand, the measure is at the end of a very long, very taxing ballot, has had zero advertising (while the no side has been advertising for the last four weeks, and is ramping up their no ads), and was polling below 50% throughout (although it has been leading). It's highly likely 90 will fail like every other proposition after 85.

[R. Chris]

What I really find amusing is here in OC is the same people who support Prop 90 are rabid anti-Measure M people; yet the logic they use in support of 90 can easily be applied to Measure M.

Case in point: Larry Gilbert posts that Measure M is bad because its funded by all these groups and companies outside of OC so its really not a grassroots effort; however, Prop 90 is primarily funded by a New York Developer and the bulk of the contributions are from companies he set-up. Moreover, the anti-90 campaign is grassroots.

They also say M is bad because it's poorly written and we shouldn't support this version of M and wait until a "better" version surfaces.

So many intelligent people acknowledge that Prop 90 is bad. Sure, we want to protect our homes from eminent domain (although the laws in California are much more strict so what happened in Kelo really can't happen here); in fact, the opponents to 90 even tried to pass a measure that simply banned the taking of private homes for a private purpose but that wasn't good enough. So why support a poorly written measure?

The supporters of 90 talk about homes being grabbed left and right by out-of-control governments but the actual stories of eminent domain abuse in California are few and far between.

Its shameful that reasonable people are supporting this measure because they're running for reelection (Correa and Daucher) and pandering to swing voters.

The Governor who has no reason to oppose 90 or even make a statement about it, did so because he knows its wrong - he probabaly has more to lose by opposing it but he did the right thing anyway.

If 90 passes and Measure M fails Orange County will have so few options for improving its transportation options (just try improving our highways with 90 in place) we'll see ourselves become like LA with constant gridlock and businesses fleeing.

[larry gilbert]

R. Chris.

Please don't attempt to twist my argument against the proposed Measure M extension.
No where in any of my OC Register editorials, where I point out the flaws of this Plan, did I mention proponent funding. Show me any reference and I will buy you a steak dinner at Morton's or Ruth's Chris Steakhouse.

For the benefit of blog readers I will shortly be posting another little transportation factoid that you might find of interest.
Larry

[Mark Alpert]

I agree that Proposition 90 is not the most artful of legislation, but Seneca's post fails to recognize that the biggest threat to property rights does not come from condemnation. It comes from regulation that takes property but which is not compensated. I have clients who would consider themselves lucky to be in the position of Ms. Kelo, because at least they would be compensated for the taking of their property. Proposition 90 surely has its flaws, but the prospect of actually paying for the cost of taking property will chill the actions of arrogant regulators who have no respect for property rights. In this case, the means justifies that end.

[redperegrine]

Prop 90 does indeed contain two specific elements. But the issue of government actions affecting private property could be construed as a single, overarching topic. The initiative also contains the usual severability language.

[R. Chris]

Larry:
here's a direct quote from your post
(http://o-juice.blogspot.com/2006/11/measure-m-supportersfollow-money.html)

"If the majority of Orange County's current residents truly support the extension where are their contributions? Virtually every donor has a self serving Agenda."

The same holds true for 90 - If a majority of Californians think its a good idea, why is the bulk of money coming from a New Yorker??

I like my steak medium :) Do I get a baked potato too?

[Seneca]

Looks like someone just earned themselves a steak dinner...