Stealth Proposition 90 Designed to Destroy California's Ability To Regulate

by Mary

Last night PBS's NOW had a program about the deceptive eminent domain propositions that have popped up on ballots in a number of states. In that program, Marie Hinojosa showed how the Montana proposition was not something that had been put on the ballot because the citizens of Montana were worried that the government threatened to take away their land, but because a wealthy multimillionaire libertarian from New York is trying to remove the ability of local or state government to regulate property and especially to prevent government from using regulations to protect the environment and the community. That man is Howie Rich and he's responsible for putting this type of proposition on the ballots of 13 states. He's betting that the fervor over the Kelo decision will be able to get enough people hot and bothered that they won't look at the fine print in the proposition.

In California, Howie Rich's baby is Proposition 90. The fine print in this proposition is that Californians are being asked to prevent government from using regulations except where there are health or safety issues without paying the property owner because regulations "take away" his property value. This proposition seeks to do what Measure 37 did in Oregon. As one of the first "takings" amendments that won passage in the United States, it is a sobering look at what Rich wants to achieve. Oregonians, even many who voted for the Measure, are distressed at what it means for their future.

"The way Measure 37 was presented to the public, prior to the election, they paraded the little old lady who had 20 acres in the ads, they had (her) saying, 'Well, my retirement was going to (rely on the) 20 acres, and I was going to sell 5 acres, and the land-use laws won't let me,' " says Ted Schroeder, a doctor in the rural Grande Ronde Valley in northeast Oregon. "In my naiveté, I thought I was voting to help relieve those sorts of situations." Now, a neighboring family, operating as Terra-Magic Inc., has filed a Measure 37 claim seeking to brush aside agricultural zoning and subdivide 1,400 acres of prime farmland into 335 home sites.

Bill Rose, who breeds specialty grasses on 2,100 acres in the Willamette Valley, about 20 miles south of Portland, says he voted for Measure 37 because he wanted to relax regulations enough to allow modest subdivisions on hilly, unfarmable rural land. Then one of his neighbors filed a Measure 37 claim to convert a 40-acre berry farm into lots one-seventh of an acre for a total of 280 houses. The developer wanted Clackamas County to waive the agricultural zoning or pay him at least $3.6 million. The county had no choice but to approve the claim. Now Rose is making a last-ditch attempt to persuade the county to limit the number of new septic tanks. He says Measure 37 claims "will destroy this valley -- the best place to live and farm that I know of."

"It's happening all over Oregon," says Renee Ross, who lives on 32 wooded and pastured acres near Molalla, southeast of Portland. Two of her neighbors have filed Measure 37 claims: One wants to build nine houses on 60 acres, and the other wants to dig a gravel mine on 80 acres. Handcuffed by Measure 37, the Clackamas County government approved both claims. "We went from having a very strict land-use policy to having no policy," Ross says. "We don't have any rights at all. It leaves us no say in the types of surroundings we live in, the undesirable businesses that can be put in right next to our property."

Here's a post that provides a visual picture of what been happening in the Portland area since the passage of Measure 37 which nullified the Urban Growth boundary.

What Rich wants to do is to prevent communities from deciding whether a mining company can mine near a rural community or whether cities can pass zoning laws because it will be considered a "taking" of a property owner's future value of the property.

The Sacramento Bee wrote about one of the Californian local backers and why he thinks the county should pay him for his perceived loss when they wrote new regulation about the number of houses that could be built on his land.

Here's how this would work. Proposition 90 supporters cite the example of Leo Hayashi, who bought 700 acres of land in Carbon Canyon near the city of Brea in the 1970s. In 1986, the city allowed one house per acre. But now it is considering rules based on hillside steepness, allowing, for example, one home per 20 acres on slopes of 30 percent or greater. Under these rules, Hayashi would be able to build about 56 houses. Robbery, Proposition 90 proponents say. They believe the city should have to pay Hayashi for the difference between a theoretical 300 homes under the old rules and 56 homes under the new rules (at about $2 million a unit) -- or back off the new rules.

But a closer look at the situation shows the absurdity of the idea. Hayashi has owned the land for 30 years and built nothing on it. He does not live on the property. He sold 400 acres, recovering far more than his 1970s investment. The 300 acres that remain are some of the steepest land in the area. With devastating landslides in La Conchita, Anaheim Hills and Laguna Beach -- and taxpayers picking up the tab -- the city has a responsibility to develop hillside zoning to make sure homes are built on stable land.

This owner has not been deprived of the economic value of his property. Just as people are entitled to gamble on stocks, people are entitled to gamble on property, as this owner did on steep hillside property. This is not a "taking."

William Michael Treanor of Fordham University describes the difference with this example: If I tell my daughter that she cannot play with her ball in the house, she has lost something of value -- the right to play with the ball in the house. I have regulated what she can do with the ball, but I haven't "taken" it. She is still free to play with it outside. I only "take" her ball when I physically seize it.

There are some surprising groups that are against Proposition 90, including the California Chamber of Congress and the California Farm Bureau. It sure shows you how extreme the California Republican Party is when they back this proposition. But no matter how bad this proposition is, you can be assured that it will be very hard to beat because of the emotional angst created by tying it to the issue of "eminent domain." As Ray Ring wrote in the San Francisco Chronicle,

In Oregon, a huge coalition opposed Measure 37, including environmentalists, governments, planners, architects, nurses, labor, neighborhood associations, the Oregon PTA and the American Cancer Society. They won endorsements from every daily newspaper in the state. They spent twice as much money as the property-rights side. And they still lost, on what consultants called "the fairness issue" -- the Measure 37 campaign managed to portray government as the enemy of property owners.

To defeat Prop. 90, California's advocates for planning and neighborhood rights will have to win on the fairness issue. They need to find compelling examples of people who are helped by land-use regulations. They need to communicate to voters that one person's rights can be another person's ruin, and that strong regulations often raise property values rather than lower them.

Find out what you can do to help defeat this travesty by checking out the No On Proposition 90 campaign.