If there's anything I retained from BarBri - past February 23, that is - it was ConLaw guru Chemerinksy's comment that Kelo - the Supreme Court decision that fueled this fear of local governments exercising eminent domain to turn over your grandmother's home to Rick Caruso - changed absolutely nothing in current law. But it had one hell of a publicist.
So now we have a super rich guy from New York backing an effort here (ah, the price we pay for being a public policy incubator for the nation) to push a patchwork proposition to limit the use of eminent domain in California:
In a state where assessments are fixed until the property is sold and where municipalities are all in pursuit of sales-tax-paying commercial developments, such condemnations are particularly attractive. Proposition 90 says private property may only be condemned for "public use" -- meaning roads or parks or schools -- not for delivery to private development.What really burns, beyond the primary public policy shortcomings of the measure, is the notion that backers admit that there will be loads of litigation to give the damn thing meaning!
But Proposition 90 isn't just about eminent domain. Buried in it are "takings" booby traps that throw into question a wide array of future regulations, zoning decisions and other actions that "result in substantial loss to private property." The initiative allows regulation to protect public health and safety, but says nothing about protecting the environment or public welfare.
It also says that if private property is taken "for any proprietary government purpose … the property shall be valued at the use to which the government intends to put the property if such use results in a higher value for the land taken." That appears to mean that slumlords must be compensated not at the value of the condemned housing, but at the value of the property under the convention center or affordable housing units that replace it. Nor could a city turn the housing over to a private agency -- say a church or social organization -- even if such an agency was a more efficient operator of the project. Even backers of Proposition 90 concede that there'll be plenty of litigation to clarify the ambiguities and apparent contradictions in the law.
That sound you hear is Hiram Johnson spinning in his Colma grave.
Or not. But either way, this is all that guy's fault. Progressive tool my arse.
But I digress. If it wins, Prop 90 could mean your city, struggling to snatch economic redevelopment and hope from the jaws of urban decay, has either no legal chance to do so or couldn't afford it anyway.
This is serious baby-with-the-bathwater territory that highlights the folly of both alarmist judicial decision coverage and hastily created ballot measures.
Unintended consequences city, people.