Eminent Domain....Special California Edition

EMINENT DOMAIN....SPECIAL CALIFORNIA EDITION....Three years ago, in Kelo v. New London, the Supreme Court ruled that local governments have the right to seize land under eminent domain even if they intend to turn the land over to a private firm for development. However, nothing in the ruling prevented states from enacting their own restrictions on eminent domain if they wanted to, and several have done exactly that in the years since.

Here in California, though, nobody seems to have the horse sense to get it right. Two years ago the lunatic brigade offered up Proposition 90, which not only restricted eminent domain but also tried to enshrine a longtime wet dream of the property rights movement: demanding government compensation for any restriction on land use. Are you losing money because local yahoos won't let you build an oil refinery in a residential neighborhood? Sue 'em! They need to either give you a permit or else pay you for all your lost profits.

Prop 90 failed. Big surprise. But not by much: if its supporters had just offered a clean eminent domain initiative, it might have won.

So this year they're back. And guess what? They haven't learned their lesson. They're still stuck on offering a "Kelo-plus" initiative. This time it's Prop 98, which not only limits eminent domain but also phases out rent control, probably eliminates affordable housing laws, prevents courts from giving any special deference to state agency findings, increases eminent domain payouts, and prohibits laws that "transfer an economic benefit to one or more private persons at the expense of the private owner" — a deliberately vague statement that has the potential to wipe out an immense swath of environmental and land use regulations. It's more subtle than Prop 90, but it's hard to say if it's any less dangerous. (Genuinely hard. There's no telling how the courts will interpret that "economic benefit" language.)

Alternatively, we Californians can vote for Prop 99, a competing eminent domain measure. This one is a clean initiative — no gotchas — but it's so sparkling clean as to be almost useless. It applies only to single-family houses and condos, and even then tacks on a list of five exemptions that, as near as I can tell, effectively guts the whole thing.

So there's your choice, Californians: Prop 98, yet another grab bag of landlord goodies, or Prop 99, which does next to nothing. And in one of those wonderful ballot measure tricks we've come to know and love here, if you're opposed to both propositions then you really need to vote Yes on Prop 99 anyway. It might not accomplish much on its own, but it does overrule Prop 98 if it gets a higher number of votes. And since there's virtually nothing on the June ballot except these measures, you probably don't want to take any chances. There's no telling what kind of turnout the Prop 98 true believers will produce.

Isn't direct democracy wonderful?

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