Even in Defeat, Prop. 90 Supporters Optimistic About 2008

By Ted Boscia

PALO ALTO, Calif., Nov. 14—After a narrow defeat at the state polls last week, debate about Proposition 90, which sought to confine eminent domain to public projects, is unlikely to disappear from California politics.
Indeed, property rights advocates have already promised to resuscitate the issue as early as the 2008 ballot. And the state legislature will probably be stirred to take up eminent domain reform next year.
“California legislators need to do something if they don’t want to see this issue back again in 2008,” said Michael Teitz, emeritus professor of city and regional planning at the University of California-Berkeley. “Even though eminent domain abuse may not be a very big problem in the state, there is the political will for [reform]. We will see this playing out as a political issue more than anything else.”
Prop. 90 supporters were heartened by the initiative’s slim 52-48 percent loss, despite being handily outspent by the opposition. Even more, ballot measures to confine eminent domain use to public projects scored impressive victories in eight other states last week.
“We had a remarkable result given the amount of money spent against us,” said Kevin Spillane, a consultant for the Protect Our Homes Coalition, the group that qualified Prop. 90 for the ballot. “Looking at what happened across the country on Election Day, we have momentum on our side.”
The nationwide push for eminent domain reform stems from a 2005 Supreme Court ruling, Kelo v. New London, which upheld a Connecticut town’s power to compel homeowners and businesses to sell their property to private developers in order to revitalize its downtown district. Prior to that decision, government could seize private property for public use only. The Kelo case provoked a strong backlash among property rights advocates. Thirty-four states—either by legislation or voter initiatives—have put limits on eminent domain in the last year, according to the National Conference of State Legislatures.
But not all states have implemented measures as sweeping as California’s Proposition 90. In addition to eminent domain restrictions, the initiative would have required compensation for property owners when new laws amounted to a government taking that reduced the value of private property. Of the 12 states that carried property rights measures on the ballot this fall, only two other states—Arizona and Idaho—incorporated both curbs on eminent domain and government takings into their proposals. In Arizona, the measure passed with 65 percent approval, but three out of four voters rejected the Idaho version.
Ultimately, the two-pronged attack by Proposition 90 on eminent domain and regulatory takings might have been its undoing. Many state and local lawmakers and a broad coalition of environmentalists, developers, taxpayer associations and public safety advocates complained that the measure was overbroad and would stifle government planning.
Gov. Arnold Schwarzenegger may have delivered the biggest blow when, a week shy of the election, he broke ranks with his fellow Republicans and came out against the proposition. “The measure is so broad and poorly drafted that I fear it will result in a barrage of frivolous lawsuits from individuals and property owners who claim the most rudimentary new laws have caused them economic harm,” Schwarzenegger said in a statement.
Still, Schwarzenegger offered no alternatives to Prop. 90, and it is likely to fall to the legislature to pass eminent domain reform. Since the Kelo case, California lawmakers have introduced five bills to limit government authority to force the sale of land to private developers, but none have gained traction in the capitol.
Teitz, the UC-Berkeley professor who is also a senior fellow at the Public Policy Institute of California, agreed that Prop. 90’s near-miss on Election Day might be a wake-up call for legislators. He said that lawmakers would be unlikely to consider curbs on regulatory takings, and that they would focus on scaling back eminent domain use.
Prop. 90 supporters are warily eyeing any legislative efforts to respond to the case. Spillane said: “I would expect that local politicians and bureaucrats would be concerned about how close it came to passing…but if the legislature had any interest in meaningful eminent domain reform, Prop. 90 would have never made it to the ballot in the first place.”
When asked if he would lobby politicians to ensure that state legislation reflected his group’s concerns, Spillane said he was “skeptical of their willingness to act in good faith.”
Whether state lawmakers address the issue or not, property rights advocates are likely to press ahead with a clone of Prop. 90 in 2008. Teitz suggested that, absent any legislative remedies in the interim, reform-minded groups could be well-positioned to mount a fresh challenge on eminent domain abuse and regulatory takings.
“There is an enormously charged atmosphere around this issue, but there is also a strong ideological push,” he said. “Some groups and organizations are determined to roll back the amount of public regulations on property and limit the size of government, and they’ve had success using this emotion and sentiment to the advantage of their agenda