The complaints often come long and loud when courts strike down
part or all of various ballot propositions after California
elections because they’re either unconstitutional or so vaguely
written that no one can tell just what they mean.
The complaints often come long and loud when courts strike down part or all of various ballot propositions after California elections because they’re either unconstitutional or so vaguely written that no one can tell just what they mean.
But sometimes these court actions are flat-out necessary, either to protect vital rights or to fix problems the voters never knew they were creating when they passed an initiative.
If there’s one such situation waiting to happen after next month’s election, it is Proposition 90, which led handily in every pre-election poll through mid-October.
This is no surprise, for the ballot summary indicates the issue is whether government should be allowed to take private property from one owner and then turn it over to another for a different private use, often aiming to reap higher taxes through the confiscated land or buildings.
If that were all there is to it, this proposition would be a no-brainer, a gut reaction against a 2005 ruling by the U.S. Supreme Court in a Rhode Island case where a city was allowed to take private property for “fair market value” (based on its old use) and turn it over to a developer for a shopping center, instantly multiplying the value of the land.
The yes on 90 side quickly received hundreds of small donations from individual homeowners scared their property also might be taken for a minimal price and turned into shopping centers or office buildings.
Theirs was a decent aim. But there’s more to this proposition than meets the eye.
Relatively unpublicized sections demand, for instance, that property owners be paid for any change in a law or regulation that results in “substantial economic loss.” Only government actions taken in behalf of public health and welfare are exempt.
Figure it this way: If this measure were a federal law, the Food and Drug Administration would right now be making massive payments to spinach farmers in the Salinas Valley whose land failed to produce its usual income this fall because the FDA’s E. coli bacteria warning caused most grocery stores to remove prepackaged spinach from their shelves. After all, the affected spinach came from just a few farms, but the initial FDA warning included all. How did casting such a wide net serve public health and welfare?
The non-partisan state Legislative Analysts’s Office says Prop. 90’s compensation rules could affect government actions “relating, for example, to employment conditions, apartment prices, endangered species, historical preservation and consumer financial protection.”
In short, if a city declared a small structure to be historic, thus preventing its owner from tearing it down to clear the path for a skyscraper, the city might have to pay the owner the equivalent of the value of a high-rise building in that location. If a city or county or the state passed laws bettering sweatshop working conditions in the garment districts of Los Angeles or San Francisco, building owners might have to be reimbursed for resulting reductions in their profits. And on and on. A similar new law in Oregon so far has produced more than $5 billion in claims.
And who would be on the hook for such payments? You guessed it: Taxpayers, not city council members or county supervisors or state legislators. For other laws exempt public officials from personal liability for consequences of almost every government decision they make.
All this extra Proposition 90 content and consequence has gotten little attention so far, mostly because opponents don’ t have the money to compete with the yes on 90 campaign. The yes campaign got $1 million from the Chicago-based Americans for Limited Government, a Libertarian-oriented group that refuses to divulge names of its donors. Essentially, this outfit doesn’t want government in the zoning or health regulation businesses.
Another $1.5 million came from the New York-based Fund for Democracy, backed largely by developer Howard Rich, a former Libertarian Party activist. And $600,000 more came from Montanans in Action, which also has ties to the aptly-named Rich.
Meanwhile, the top donor to the no on 90 side has been the Nature Conservancy, which had popped for $148,000 as of Oct. 1.
It’s an imbalanced campaign, with the result most likely to favor the side with the big bucks.
And it could hamstring local governments, rendering them unable to zone land for orderly development without paying gigantic potential penalties to large numbers of affected property owners.
If this passes, the best hope for an orderly and governable California future will be for some courageous judge to step in and limit Proposition 90’s effect to the eminent domain seizures that are the focus of its appeal. For when voters are deceived by an inaccurately titled and deceptively hyped ballot measure, they need some educated backup. Let’s hope they get it if this wins.
Tom Elias is author of ” The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It.” His e-mail address is
td*****@ao*.com
