C.30 SUPPORT Proposition 99, a ballot measure that will prevent governments from using eminent domain to take an owner-occupied home to transfer to a private party; and OPPOSE Proposition 98 a competing measure that will eliminate rent control and other renter protections, threaten development of public water projects, stymie local land use planning and impair environmental protection, as recommended by the County Administrator. (All Districts)

This smells like a typical John “Igor” Gioia weasel tactic that attempts to cover up government actions rather than offer voters transparency. No doubt, some League of Cities sock puppet will say that hiding crucial votes in the Consent Calendar is a time honored trick of crooked politicians that cannot stand challenge or debate. Beside, they will say, it’s legal if they don’t discuss the issue beforehand.

Excuse me? There was no discussion? How did it get on the agenda unless there was a head count before hand? It had to be discussed in committee, no? How could it get to the consent calendar then if there was no discussion in committee?

To sneak around and pass “official” County pronouncements concerning upcoming ballot propositions without benefit of full promulgation of committee reports, and without public notice, and without public debate is a violation not only of the spirit and letter of the Brown Act, but a clear violation of the trust of the electorate.

The League of California Cities placed an initiative on the ballot to amend the state constitution for the purpose of protecting homes from eminent domain abuse.1 Proposition 99, the “Homeowners and Private Property Protection Act” (“Prop 99”), as it is called, is both a response to the U.S. Supreme Court’s infamous decision in Kelo v. City of New London, and Proposition 90, a combination eminent domain and regulatory takings measure that was narrowly defeated in 2006. Unfortunately, Prop 99 allows a considerable amount of abuse to continue.

Despite its lofty language of intent, Prop 99 would only protect “owner-occupied residence[s]” from being acquired by eminent domain and subsequently transferred to a private party for private development. While that is certainly necessary and worthwhile, as defined in Prop 99, “owner-occupied residence” specifically excludes all small business owners, all renters and even all new homeowners if they have lived in their residences for less than a year.

Prop 99 would provide even less protection than would have been provided by ACA 8, a League-backed—and recently defeated—constitutional amendment considered by the Legislature. Over the years, the Institute for Justice has found over 1,000 instances of eminent domain abuse in California, many of which would not be stopped by Prop 99 because it seeks to prevent abuse against such a small proportion of the properties subject to abuse. Prop 99 will do little to prevent eminent domain abuse in California3—and this flaw is fatal.

In addition, 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. Courts give great deference to a government’s claim of purpose, so Prop 99 would be of little use to homeowners whose cities are determined to take their properties.

Finally, Prop 99 contains a provision that would nullify any other attempts to amend Article I, Section 19 of the constitution—a clear attack on another ballot measure, which promises broad-reaching, non-discriminatory protection of homes, farms, business and houses of worship from the abuse of eminent domain.4 Filed by a group consisting of the California Farm Bureau Federation, Howard Jarvis Taxpayers Association and California Alliance to Protect Private Property Rights, Prop 98, the “California Property Owners and Farmland Protection Act” (“Prop 98”), will appear on the same June 2008 ballot. In the event that both pass, Prop 99’s specific provision would wipe out Prop 98 in its entirety.

In the end, Prop 99 will provide insubstantial protection against the use of eminent domain for private commercial development. Small business owners will continue to lose not only their buildings, but also their incomes. All farmers and working class renters are at risk. Homeowners may not even be protected. Californians require real, substantive reform for everyone and Prop 99 does not come close to providing it.

The San Francisco Tenant’s Union, using typical Marxist class-struggle slogans, has planned a demonstration to “fight back” against Prop 98 for March 15. They claim Prop 98 will end rent control for hundreds of thousands of poor folks in San Francisco and other deteriorating communities elsewhere in California.

This I know, there are two sure ways to create less affordable housing while increasing substandard housing and that is to subsidize housing and/or establish rent controls. Take profits away from builders or landowners and they walk away from improving property. Overtime, as in Manhattan and San Francisco, such policies create a dumb bell society of ghetto dwellers too poor to leave and the tuxedoed super rich who can afford to step over the homeless on their way to the opera on Van Ness.

For a good primer on how this works read America’s Trillion Dollar Housing Mistake, by Howard Husock.

Fasten your seatbelt. The agitprop being drummed up by the developer-supported redevelopment community to confuse eminent domain and defeat Prop 98 will be intense.