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Props 98 or 99 Reform or Reform Killer? by Gary M. Galles 6/2/08

Protecting Californians from eminent domain abuses headlines our June ballot.  There are two Propositions--98 and 99--that address the issue.  However, both are portrayed as real reform by backers and as misleading scams by opponents, making it hard for voters to sort through the assertions. 

Given both propositions’ backers claim they intend to rein in government eminent domain abuses at the expense of property owners, the best approach is to ask which “reforms” would be most effective at restricting them. 

 If the intent is to limit abuses, would we want to protect owners of all property—homes, farms, churches, businesses and rental properties—against them (98), or only owner-occupied homes that have been owners’ primary residence for at least one year (99)?  

If abuses are frequently used to “help” private developments (e.g., shopping centers) rather than traditional public uses such as freeways and schools, would we want to ban such uses, restricting eminent domain to public uses (98), or leave them untouched (99)?

If loopholes now allow governments to circumvent property protections, would we want to restrain them or retain them?

If bogus government determinations of “blight” (where supposedly “blighted” areas, which now include 30% of all the urbanized land in California, can be indicated by anything government decides not to like, including a lack of parking or odd-shaped lots) allow eminent domain restrictions to be overridden behind the disguise of protecting public health and safety, would we want to limit them (98) or preserve them (99)?

If non-blighted properties can now be condemned because they are “nearby or adjacent” supposedly blighted properties, where the meaning of that ambiguous phrase is left to the discretion of the condemning agency, would we want to limit eminent domain powers to those properties that are legitimate public nuisances (98) or leave that almost unlimited discretion untouched (99)?

If we are concerned about inappropriate condemnations, would we prefer that government agencies clearly state intended public uses in advance and prevent condemnations for other uses (98) or allow them to use such properties any way they wish (99)?

If public benefits from government condemnation require that properties be converted to different uses than before, would we want to keep government from taking properties to use for the same purpose (98) or not (99)? 

If abuses persist because it is too costly for property owners to challenge agencies’ property valuations or to collect other damages imposed on them, would we want to expand owners’ ability to defend themselves?  Might we begin compensating owners for their reasonable legal costs when they can successfully demonstrate they were underpaid and entitle owners to compensation for temporary business losses and relocation expenses, rather than leaving that to the discretion of the condemning agency (98)?  Would we rather maintain the status quo (99)? 

If the propositions intend to stop abuses, would one proposition explicitly eliminate the legitimate reforms produced by the other (99)? 

Proposition 98 offers Californians real protections against state and local abuses of eminent domain powers. Proposition 99 is a bait-and-switch decoy, whose backers loudly tout its minimalist changes as reform only to stop serious reforms that would better protect all Californians. 

The millions Proposition 99’s backers are spending to dupe us is an investment in voter ignorance and gullibility.  But hopefully, Californians will think seriously about the claims of those groups who benefit from the abuses and defeated earlier attempts to stop them.  If so, they need only follow the Legislative Analyst’s Office, which concluded that Proposition 99 “is not likely to significantly alter current government land acquisition practices.”  After all, something that does not significantly alter current practices cannot be a substantial reform, regardless of what it is called.  And when such an initiative would override real solutions, there is little doubt that it is a reform killer, not a reform. CRO

copyright 2008 Gary M. Galles

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