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Legal Analysis of Prop. 99 Exposes Fatal Flaws 
Homeowner "Protections" Easily Circumvented

by Jon Coupal 5/6/08

For the past several months, local government interests, including the League of California Cities and the California State Association of Counties, have spent millions of dollars touting Prop. 99 as ironclad protection for Californians who fear having their homes seized by local governments to be turned over to private developers for strip-malls and other for-profit projects.

But the list of property rights experts who reject this claim is growing. This is because Prop. 99 includes significant loopholes that will allow public agencies to continue to forcibly seize owner occupied homes and give them to wealthy and politically connected developers, even if the measure wins voter approval.

According to the Institute for Justice (IJ), an independent non-profit organization that represented Susette Kelo before the U.S. Supreme Court in the controversial Kelo v. New London case, public agencies could circumvent Prop. 99's purported homeowner protections by merely rezoning residential neighborhoods for business use.

Jon Coupal

Jon Coupal is an attorney and president of the Howard Jarvis Taxpayers Association -- California's largest taxpayer organization with offices in Los Angeles and Sacramento. [go to website] [go to Coupal index]

IJ's independent analysis states: "... Prop 99 only applies to owner-occupied residences when the government's 'purpose' is to convey property to another private party, so it is unclear if Prop. 99 would protect any property. Government can always claim that its purpose is something else. For example, under the Prop. 99 'purpose' test, a government could change the zoning of an area -- from residential to commercial, for example -- and then, with the alleged purpose of making the properties in the area meet the new zoning requirements, use eminent domain to transfer homes to private developers."

It is no wonder that IJ concludes that "Prop 99 will do little to prevent eminent domain abuse in California -- and this flaw is fatal."

In addition to rezoning, Prop. 99 includes several other loopholes within its exemption clauses that discredits backers' claims that it protects California homes.  Prop. 99 fails to reform overly broad blight designations that allow any modest home or productive business to be seized by eminent domain, it allows private to private takings by preserving the Kelo definition of what is a legitimate "public use," and finally, it fails to define its health and safety, and so-called emergency exemptions.

Are these fatal flaws the result of drafting mistakes, or by design? Given that the associations representing public agencies and politicians employ some of the most experienced experts in land use and redevelopment, it is a good bet that it is their intent to fool voters.

But they are not fooling everyone, especially those under the threat of eminent domain. Jerome Hymes lives in the North San Diego County community of Vista where the city has plans to extend their redevelopment zone to more than 4,000 acres!

While Prop. 99 purports to protect all homes if one has lived in the home more than one year, Mr. Hymes knows that Prop. 99 will not stop the City of Vista from bulldozing his home of more than 10 years. This was confirmed when the city council recently endorsed Prop. 99. After all, local officials are not about to endorse a measure that would threaten their ability to use eminent domain to acquire the homes desperately needed for their ambitious redevelopment project!

Consider the implication of this mother of all loopholes for the state as a whole. According to the Municipal Officials for Redevelopment Reform (MORR), "Fully 30% of all urbanized land in California has now been declared blighted." It is truly amazing how large this "loophole" is getting and to what extent proponents of Prop. 99 have gone to deny Californians private property protections!

And Prop. 99 does not protect businesses, family farmers or places of worship. So with its many homeowner exemptions and loopholes, does anyone really benefit from the passage of Prop. 99? Yes, it benefits politicians and their favored developer allies, because under Prop. 99 eminent domain abuse would continue unabated.

As we near the June election, California voters will certainly learn more about Prop. 99 and its many loopholes -- and to what length those who have the power of eminent domain will go to maintain their power. CRO

copyright 2008 Howard Jarvis Taxpayers association



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