Skip to comments.CA: Why You Should Vote Yes on Proposition 90 (Eminent Domain)
Posted on 09/13/2006 8:54:53 AM PDT by calcowgirl
An original column penned for the FlashReport by Republican State Assemblyman Ray Haynes.
The first question for those of us who believe in conservatism is what specific values we believe in. Do we believe in small government? Do we believe in fewer taxes? Do we believe in individual liberty? If we believe in these things, how does that translate into actual public policy?
Proposition 90 begins with the first fundamental premise; no government--federal, state or local--should be allowed to take a private individuals property, and turn it over to another private individual, no matter how good a reason the government has for taking the property. Government always thinks it knows how to use your property better than you, so it will always come up with a good excuse to take it away from you. Proposition 90 says that is not right.
As an ancillary to that premise, Proposition 90 says that any government, federal, state or local, should not be allowed to use its regulatory authority, that is planning or zoning codes, to effectively damage or devalue your property without compensation. In other words, it is not enough that the government simply allow you to keep title to your land, it should allow use to make use of that land at its existing value. Often, a state or local government will pass a law, ordinance, rule, or regulation that effectively prevents you from using your land for any purpose. So, even though you still own the land, and are required to pay taxes on the land, the new laws do not allow you to do anything with it (look at the Endangered Species Act). Proposition 90 says that if a government effectively takes your property, they have to pay you for it.
So, why is that important for conservatives? First, it is supposed to be a constitutional mandate. We say we believe in first principles; the original intent of the founders in the Constitution; finding out what our founding fathers meant when they drafted the Constitution. The Fifth Amendment says very clearly that property may not be taken for public use without just compensation. Sowhat is a taking? If a government wants to put a park on your land, can they just zone it for a park, never buy it from you, and make you use it for a park? Of course not. But, courts have held that they can zone it Open Space (which is the same as a park), and you dont get paid for the taking, or the devaluation of your property. That is inappropriate.
How about public use? Can the government take your land, and sell it to an Auto Mall developer so that the government makes more money off of your land? Is that a public use? Courts have said, Yes. That is inappropriate.
What is just compensation? Is it whatever the government can force you to accept, by using its power unjustly to force you to hand over the land, and then tie you up in court until you accept the governments price? Courts have said yes.
Proposition 90 says, No.
All of our political freedoms begin with a proper respect by government for private property rights. Without private property rights, no other freedom has any meaning. If a government can use its power to bankrupt you, you have no freedom. Some people may die in the defense of freedom, none will go bankrupt. After all, if you go bankrupt in the defense of freedom, you are still alive, and have to explain to your spouse why there is no food on the table. No self respecting person will put themselves through that torture. They will just shut their mouth, and put up with oppressive government.
Why should conservatives support Proposition 90? Because it supports and promotes that first, and most basic, freedom, private property.
In addition, it changes the political dynamic. The only way some liberal groups can get money out of business is by threatening their property and their businesses through local elected officials and their regulatory powers. We all know that much what local government do is extort businesses into supporting liberal politicians, just so that those liberal politicians will leave those businesses alone. Proposition 90 gives that business or landowner an even shake if they say no to the shakedown by left wing politicians.
Finally, opponents say that Proposition 90 is poorly drafted. Actually, it is not. When opponents of an initiative say it is poorly drafted, they are really saying, We cant find any loopholes, this initiative will actually do what it says it will do. Proposition 90 says it will protect private property rights, and then writes language to actually do so.
Why should conservatives support Proposition 90? Simple. Either conservatives stand for freedom, or they do not. If they stand for freedom, they will stand with Proposition 90. If they want bigger, more powerful government, they will oppose Proposition 90. It is just that simple.
WHY I AM NOT VOTING FOR PROPOSITION 90
An original column penned for the FlashReport by State Senate Republican Leader Dick Ackerman.
Proposition 90, the Protect Our Homes Act on the November ballot, has much to like. It addresses the real concern that in the wake of the Supreme Court decision in Kelo v. City of New London there is no constitutional protection for a property owner whose property is seized for private economic development.
For example, under this flawed decision your home or business could be taken against your will and sold to a private developer only because the proposed development will generate significantly higher tax revenue to the city. I strongly disagree with this decision and believe government has overstepped its authority and has no right to take your property and give it to another private party. Furthermore, Proposition 90 makes long overdue reforms in the manner in which governmental entities declare entire areas blighted in order to facilitate redevelopment.
Proposition 90 also offers voters a chance to send a clear message to government: Enough is enough; eminent domain should only be used judiciously and only in cases where a government agency acquires the property for a true public purpose such as schools, roads and other infrastructure projects.
But there is another and perhaps even more profound provision in this initiative that has not received much attention or discussion.
In the past, I have raised concerns with the effects that the Protect Our Homes Act would have on so-called regulatory takings. Regulatory takings are government regulations, which negatively impact the ability of property owners to use their property as they see fit. Under the POHI, property owners would have to be compensated for a wide variety of regulatory actions such as re-zoning if the regulations reduce property values, even though no property is physically acquired.
The Protect Our Homes Initiative states, damage to private property includes government actions that result in substantial economic loss to private property. Examples of substantial economic loss include, but are not limited to, the down zoning of private property, the elimination of access to private property, and limitations on the use of private air space.
The POHI could be the basis for setting aside any regulation, no matter how reasonable or beneficial to a community. Under the damage provision, any regulatory action may open a Pandoras Box of new lawsuits, triggering a great deal of litigation regarding whether a regulation damaged the property and requires compensation.
While this provision would not prohibit government from making rules to protect our communities from objectionable influences, it could make it economically unviable to do so. The level of possible litigation and compensation for affected property would, essentially, eliminate the good land-use planning with the bad.
Proposition 90 is a strong response to the increased liberalization of eminent domain laws in California, but it may be too restrictive. The inflexibility of these limits in land use planning may restrict growth unnecessarily and may restrict good governments ability to protect existing property owners in established neighborhoods or commercial areas.
Californians deserve strong protections from eminent domain abuses. I have no doubt this measure will stop those abuses and I would support this part of the initiative wholeheartedly. But taken as a package, I am not convinced that it is the best solution for protecting our property.
I wish we could keep Mr. Haynes.
We passed a measure in Oregon which requires local governments to either pay property owners for changes in zoning or other actions that reduce the property's value, or retract the regulation.
So far, it hasn't resulted in the dire consequences predicted by the big government types.
You and me both!
Prop 90 is a home run! I believe that under Prop 90, if the government seizes your house and doesn't use it, it can't sell it to a developer or big box store - it must offer it back to you for what it paid you and restore your old (lower) tax rate.
Politicians will hate this one - they can't auction your house off to Costco before an election for campaign contributions.
(No more Olmert! No more Kadima! No more Oslo! )
(No more Olmert! No more Kadima! No more Oslo! )