Article Executive Director's Message Chris McKenzie

Why the League Supports Honest and Responsible Eminent Domain Reform

Over the past three months, this column and the President’s Message column have addressed the League’s strategic priorities for 2008. This month, I look at the fourth and final priority: “Enact honest and responsible eminent domain reform.”

Let’s face it. Eminent domain as a governmental power is neither new nor popular. Public opinion polls strongly suggest that it is universally disliked and begrudgingly supported only if it is being used for infrastracture or to remove a threat to the community, like an environmentally contaminated site or an area of pervasive crime that most of us think of as typical “blight.”

It is even more controversial when a government agency uses eminent domain to acquire someone’s home. In fact, that was the very thing that led to broad public reaction when the City of New London, Conn., chose to use eminent domain to acquire a neighborhood with nice single-family homes for private economic development. The outcry caused by the Kelo case, in which the U.S. Supreme Court ruled against the homeowners in 2005, has been heard throughout the nation, leading to many changes in state law to reform the use of eminent domain.

What It Meant for California Cities

Even though California’s eminent domain law is much more restrictive than Connecticut’s, the U.S. Supreme Court’s decision that housing could be con demned for economic development was equally unpopular in our state. Legislation was introduced to limit eminent domain powers, and some bills were enacted that moved the ball down the court.

In 2006, a constitutional amendment qualified for the California statewide ballot that promised to correct the “problem.” Proposition 90 would have prevented the use of eminent domain for all redevelopment projects. There was only one problem. It also would have required compensation for a lot of the traditional land use, environmental and business regulation of state and local government. Voters ultimately rejected Prop. 90 as the Trojan horse that it was. The League was part of the broad coalition that opposed Prop. 90, and we prevailed by a narrow margin.

Aware of the continued public antipathy toward eminent domain, the League and the California Redevelopment Association (CRA) started drafting a proposed constitutional amendment for legislative consideration, and we did what most people would consider unthinkable. We reached out to the Howard Jarvis Taxpayers Association (HJTA) to see if its leaders wanted to collaborate with us. We were pleasantly surprised when they accepted, but we later learned that our hopes were unrealistic for an honest partnership that addressed public concern about eminent domain. We shouldn’t hold the good members of that group responsible, however, for what the apartment owner-dominated board of the HJTA did subsequently.

We began drafting and negotiating with HJTA, and by late February 2007 we had reached agreement on the language of a proposed eminent domain reform ballot measure for legislative consideration. This language would trim the powers of all public agencies to use eminent domain to acquire property for redevelopment. The new measure also extended new protections to small businesses and had a statutory companion that significantly increased relocation and business replacement benefits for small businesses affected by eminent domain. HJTA told the media and the League that we had gone further than they ever expected and, with us, be gan the process of lobbying for the ballot measure’s enactment.

Two Commitments Are Broken

What happened next was unexpected and deeply disturbing. In spring 2007, on the eve of announcing we had an outstanding legislative author (Assembly Member Hector De La Torre, D-South Gate) and a legislative vehicle secured (Assembly Constitutional Amend ment 8), HJTA informed us it would no longer assist with lobbying for or sup port ACA 8 (after months of effort on its behalf). The HJTA board had made a decision to qualify an initiative that is now known as Prop. 98 — a measure that also eliminates rent control and has other significant impacts on land use planning, environmental protection, water supply development and affordable housing.

We later learned that a number of apart ment and mobile-home park owners had committed the funding to qualify the measure because of its rent control provisions. Unable to end rent control by an initiative 10 years earlier, HJTA clearly had decided to attempt to ride the eminent domain reform horse across the finish line.

While we were disappointed, we weren’t deterred, because HJTA told us that they would not oppose a legislative solution — a promise we soon learned was no better than their first commitment to sup-port ACA 8. As Assembly Member De La Torre accepted important amendments to the bill during two committee hearings, its prospects for passage were improving. Concurrently, HJTA reversed course again and in summer 2007 began lobbying against the bill they had previously helped write and support. When the measure was brought to a floor vote in the Assembly it received a simple major ity vote, but fell short of the required two-thirds majority vote.

A Strategic Choice Is Made to Offer Honest Reform

Our coalition faced a critical choice at this juncture. We could oppose Prop. 98 (like we did with the No on Prop . 9 0 effort) or we could keep the commitment we had made during the No on Prop. 90 campaign to offer the voters the eminent domain reform they have been asking for since the Kelo decision in 2005. We could do this by qualifying a proposed initiative, which we had filed months earlier as a back-up plan in case all else failed, that simply and honestly prevents the use of eminent domain to acquire single-family homes for transfer to a private developer. The initiative has no hidden provisions. It is real, direct eminent domain reform.

So we chose to go with qualifying our own initiative, which became Prop. 99 on the June 2008 ballot. We drew on a variety of funding sources (including reserves of nonpublic, private funds of the League, California State Association of Coun ties and CRA), CITIPAC contributions, funds raised by our coalition partners and volunteer help from coalition members to gather the signatures needed to qualify. Prop. 99 will appear opposite Prop. 98 and will offer voters honest, responsible eminent domain reform — unlike the deceptive Prop. 98. The major question that remains at this time is how much money the apartment and mobile-home park owners will contribute to the effort to pass Prop. 98.

What’s Next?

As the League has become more involved in ballot measure campaigns in recent years, it has made some strategic choices that virtually all our members support. First, we’ve had to abandon our historic preference for taking the legislative route in policy-making on major issues. As we explained during the last legislative session to legislators who wondered why we had introduced ACA 8, we prefer the give and take of the legislative process, in which imperfections in proposals can be identified and corrected. The initiative process is much more likely to result in the enactment of flawed legislation and, worse, constitutional amendments. Un fortunately, legislators seem to increasingly favor the initiative process for setting major state policy. As we saw in the February 2008 election, some legislators have even sponsored initiatives themselves.

Second, we’ve accepted that we must be constantly involved in raising funds for our political action committee, CITIPAC, even outside of the campaign season. This takes ongoing efforts by the many volunteers who help us with this important task, day in and day out. We deeply appreciate their time and the many contributors who have made such a difference in our success in this arena.

Third, and perhaps most important, we understand and accept that if you expect to be involved in this side of the political process that you will receive criticism — whether it’s fair or not. Over the past few months, the League and our local government association allies have been unfairly criticized by our political opponents, who have falsely and inaccurately claimed that we use public funds to finance our ballot measure campaign activities. It doesn’t matter to them that their charges are reckless and inaccurate. What matters is that they don’t want anyone to look too closely at the deep flaws in Prop. 98. As an old lawyer’s saying goes, “If you don’t have the law on your side, argue the facts.” The only problem is that they don’t even have the facts on their side — their claims are fiction, but that is all they have, so they are using it.

Finally, we have to be prepared to lead on eminent domain reform and other policy initiatives when we have carefully studied what the public seems to be saying and we know we can balance it with our other responsibilities. Observed objectively, the League’s, CSAC’s and CRA’s support of Prop. 99, which honestly limits the use of eminent domain for single-family homes, is an acknowledgment of our respect for the expressed interest of the public in emi nent domain reform and our acceptance that it is exactly what the public expects us to offer. With Prop. 99, the Homeowners Protection Act, owners of single-family homes won’t have that worry anymore and the voters will get exactly what the measure states.

Prop. 99 has no hidden agendas and would provide straightforward eminent domain reform. Among the many groups that have united to support it are the League of Women Voters of California, California Alliance for Retired Americans, California League of Conservation Voters and League of California Homeowners. In addition, educators, business, labor, environmental and public safety organizations throughout the state support Prop. 99.

Working Together for the Public Good

The League and our coalition partners will work hard right up to Election Day (June 3) to build support for Prop . 9 9 and to educate voters about the great harm that Prop . 9 8 will do to our efforts to create healthy and safe communi ties. We encourage city officials to join us — working on your own time and without using public resources. Help us educate neighborhood, business, environmental and other groups in your community about the traps in Prop . 9 8 and the benefits of Prop . 9 9. You can learn more about both measures by visiting www.no98yes99 .com.

We all share the goal of sustainable cities, and responsible eminent domain reform is a critical part of our efforts to protect our residents and neighborhoods. We all know that what happens in this June’s election will have a profound effect on our efforts for years to come.

This makes it worth our while to get involved now. Let’s do this together!

This article appears in the May 2008 issue of Western City
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