Tuesday, June 3, 2008

Proposition 99: Eminent Domain. Limits on Government Acquisition of Owner-Occupied Residence. PASSED

Initiative Constitutional Amendment.

  • Bars state and local governments from using eminent domain to acquire an owner-occupied residence, as defined, for conveyance to a private person or business entity.
  • Creates exceptions for public work or improvement, public health and safety protection, and crime prevention.

Summary of Legislative Analyst’s Estimate of Net State and Local Government Fiscal Impact:

  • No significant fiscal impact on state or local governments.
For the TEXT OF PROPOSED LAW:

PROPOSITION 99

This initiative measure is submitted to the people of California in accordance with the provisions of Section 8 of Article II of the California Constitution. This initiative measure amends a section of the California Constitution; therefore, new provisions proposed to be added are printed in italic type to indicate that they are new.

TITLE. This measure shall be known as the “Homeowners and Private Property Protection Act.”

PROPOSED LAW SECTION 1. PURPOSE AND INTENT

By enacting this measure, the people of California hereby express their intent to:

(a) Protect their homes from eminent domain abuse.

(b) Prohibit government agencies from using eminent domain to take an owner-occupied home to transfer it to another private owner or developer.

(c) Amend the California Constitution to respond specifically to the facts and the decision of the U.S. Supreme Court in Kelo v. City of New London, in which the Court held that it was permissible for a city to use eminent domain to take the home of a Connecticut woman for the purpose of economic development.

(d) Respect the decision of the voters to reject Proposition 90 in November 2006, a measure that included eminent domain reform but also included unrelated provisions that would have subjected taxpayers to enormous financial liability from a wide variety of traditional legislative and administrative actions to protect the public welfare.

(e) Provide additional protection for property owners without including provisions, such as those in Proposition 90, which subjected taxpayers to liability for the enactment of traditional legislative and administrative actions to protect the public welfare.

(f) Maintain the distinction in the California Constitution between Section 19, Article I, which establishes the law for eminent domain, and Section 7, Article XI, which establishes the law for legislative and administrative action to protect the public health, safety and welfare.

(g) Provide a comprehensive and exclusive basis in the California Constitution to compensate property owners when property is taken or damaged by state or local governments, without affecting legislative and administrative actions taken to protect the public health, safety and welfare.

SECTION 2. AMENDMENT TO THE CALIFORNIA CONSTITUTION Section 19 of Article I of the California Constitution is amended to read: SEC. 19.

(a) Private property may be taken or damaged for a public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. The Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount of just compensation.

(b) The State and local governments are prohibited from acquiring by eminent domain an owneroccupied residence for the purpose of conveying it to a private person.

(c) Subdivision (b) of this section does not apply when State or local government exercises the power of eminent domain for the purpose of protecting public health and safety; preventing serious, repeated criminal activity; responding to an emergency; or remedying environmental contamination that poses a threat to public health and safety.

(d) Subdivision (b) of this section does not apply when State or local government exercises the power of eminent domain for the purpose of acquiring private property for a public work or improvement.

(e) For the purpose of this section:

1. “Conveyance” means a transfer of real property whether by sale, lease, gift, franchise, or otherwise.

2. “Local government” means any city, including a charter city, county, city and county, school district, special district, authority, regional entity, redevelopment agency, or any other political subdivision within the State.

3. “Owner-occupied residence” means real property that is improved with a single-family residence such as a detached home, condominium, or townhouse and that is the owner or owners’ principal place of residence for at least one year prior to the State or local government’s initial written offer to purchase the property. Owner-occupied residence also includes a residential dwelling unit attached to or detached from such a single-family residence which provides complete independent living facilities for one or more persons.

4. “Person” means any individual or association, or any business entity, including, but not limited to, a partnership, corporation, or limited liability company.

5. “Public work or improvement” means facilities or infrastructure for the delivery of public services such as education, police, fire protection, parks, recreation, emergency medical, public health, libraries, flood protection, streets or highways, public transit, railroad, airports and seaports; utility, common carrier or other similar projects such as energy-related, communication-related, water-related and wastewater-related facilities or infrastructure; projects identified by a State or local government for recovery from natural disasters; and private uses incidental to, or necessary for, the public work or improvement.

6. “State” means the State of California and any of its agencies or departments.

SECTION 3. By enacting this measure, the voters do not intend to change the meaning of the terms in subdivision (a) of Section 19, Article I of the California Constitution, including, without limitation, “taken,” “damaged,” “public use,” and “just compensation,” and deliberately do not impose any restrictions on the exercise of power pursuant to Section 19, Article I, other than as expressly provided for in this measure.

SECTION 4. The provisions of Section 19, Article I, together with the amendments made by this initiative, constitute the exclusive and comprehensive authority in the California Constitution for the exercise of the power of eminent domain and for the payment of compensation to property owners when private property is taken or damaged by state or local government. Nothing in this initiative shall limit the ability of the Legislature to provide compensation in addition to that which is required by Section 19 of Article I to property owners whose property is taken or damaged by eminent domain. SECTION 5. The amendments made by this initiative shall not apply to the acquisition of real property if the initial written offer to purchase the property was made on or before the date on which this initiative becomes effective, and a resolution of necessity to acquire the real property by eminent domain was adopted on or before 180 days after that date.

SECTION 6. The words and phrases used in the amendments to Section 19, Article I of the California Constitution made by this initiative which are not defined in subdivision (e), shall be defined and interpreted in a manner that is consistent with the law in effect on January 1, 2007, and as that law may be amended or interpreted thereafter.

SECTION 7. The provisions of this measure shall be liberally construed in furtherance of its intent to provide homeowners with protection against exercises of eminent domain in which an owneroccupied residence is subsequently conveyed to a private person.

SECTION 8. The provisions of this measure are severable. If any provision of this measure or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SECTION 9. In the event that this measure appears on the same statewide election ballot as another initiative measure or measures that seek to affect the rights of property owners by directly or indirectly amending Section 19, Article I of the California Constitution, the provisions of the other measure or measures shall be deemed to be in conflict with this measure. In the event that this measure receives a greater number of affirmative votes, the provisions of this measure shall prevail in their entirety, and each and every provision of the other measure or measures shall be null and void.


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Proposition 98: Eminent Domain. Limits on Government Authority. FAILED

Initiative Constitutional Amendment.

  • Bars state and local governments from taking or damaging private property for private uses.
  • Prohibits rent control and similar measures.
  • Prohibits deference to government in takings cases.
  • Defines “just compensation.”
  • Requires an award of attorneys fees and costs if a property owner obtains a judgment for more than the amount offered by the government.
  • Requires government to offer to original owner of condemned property the right to repurchase property at condemned price when property is put to substantially different use than was publicly stated.

Summary of Legislative Analyst’s Estimate of Net State and Local Government Fiscal Impact:

  • Increased costs to many governments due to the measure’s restrictions. The net statewide fiscal effect, however, probably would not be significant.
For the TEXT OF PROPOSED LAW:

PROPOSITION 98

This initiative measure is submitted to the people of California in accordance with the provisions of Section 8 of Article II of the California Constitution. This initiative measure amends a section of the California Constitution; therefore, existing provisions proposed to be deleted are printed in strikeout type and new provisions proposed to be added are printed in italic type to indicate that they are new.

PROPOSED LAW SECTION 1. STATEMENT OF FINDINGS

(a) Our state Constitution, while granting government the power of eminent domain, also provides that the people have an inalienable right to own, possess, and protect private property. It further provides that no person may be deprived of property without due process of law, and that private property may not be taken or damaged by eminent domain except for public use and only after just compensation has been paid to the property owner.

(b) Notwithstanding these clear constitutional guarantees, the courts have not protected the people’s rights from being violated by state and local governments through the exercise of their power of eminent domain.

(c) For example, the U.S. Supreme Court, in Kelo v. City of New London, held that the government may use eminent domain to take property from its owner for the purpose of transferring it to a private developer. In other cases, the courts have allowed the government to set the price an owner can charge to sell or rent his or her property, and have allowed the government to take property for the purpose of seizing the income or business assets of the property.

(d) Farmland is especially vulnerable to these types of eminent domain abuses.

SECTION 2. STATEMENT OF PURPOSE

(a) State and local governments may use eminent domain to take private property only for public uses, such as roads, parks, and public facilities.

(b) State and local governments may not use their power to take or damage property for the benefit of any private person or entity.

(c) State and local governments may not take private property by eminent domain to put it to the same use as that made by the private owner.

(d) When state or local governments use eminent domain to take or damage private property for public uses, the owner shall receive just compensation for what has been taken or damaged.

(e) Therefore, the people of the state of California hereby enact the “California Property Owners and Farmland Protection Act.”

SECTION 3. AMENDMENT TO CALIFORNIA CONSTITUTION Section 19 of Article I of the California Constitution is amended to read: SEC. 19.

(a) Private property may be taken or damaged only for a stated public use only and when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. The Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount of just compensation. Private property may not be taken or damaged for private use.

(b) For purposes of this section:

(1) “Taken’’ includes transferring the ownership, occupancy, or use of property from a private owner to a public agency or to any person or entity other than a public agency, or limiting the price a private owner may charge another person to purchase, occupy or use his or her real property.

(2) “Public use” means use and ownership by a public agency or a regulated public utility for the public use stated at the time of the taking, including public facilities, public transportation, and public utilities, except that nothing herein prohibits leasing limited space for private uses incidental to the stated public use; nor is the exercise of eminent domain prohibited to restore utilities or access to a public road for any private property which is cut off from utilities or access to a public road as a result of a taking for public use as otherwise defined herein.

(3) “Private use” means:

(i) transfer of ownership, occupancy or use of private property or associated property rights to any person or entity other than a public agency or a regulated public utility;

(ii) transfer of ownership, occupancy or use of private property or associated property rights to a public agency for the consumption of natural resources or for the same or a substantially similar use as that made by the private owner; or

(iii) regulation of the ownership, occupancy or use of privately owned real property or associated property rights in order to transfer an economic benefit to one or more private persons at the expense of the property owner.

(4) “Public agency” means the state, special district, county, city, city and county, including a charter city or county, and any other local or regional governmental entity, municipal corporation, public agency-owned utility or utility district, or the electorate of any public agency.

(5) “Just compensation” means:

(i) for property or associated property rights taken, its fair market value;

(ii) for property or associated property rights damaged, the value fixed by a jury, or by the court if a jury is waived;

(iii) an award of reasonable costs and attorney fees from the public agency if the property owner obtains a judgment for more than the amount offered by a public agency as defined herein; and

(iv) any additional actual and necessary amounts to compensate the property owner for temporary business losses, relocation expenses, business reestablishment costs, other actual and reasonable expenses incurred and other expenses deemed compensable by the Legislature.

(6) “Prompt release” means that the property owner can have immediate possession of the money deposited by the condemnor without prejudicing his or her right to challenge the determination of fair market value or his or her right to challenge the taking as being for a private use.

(7) “Owner” includes a lessee whose property rights are taken or damaged.

(8) “Regulated public utility” means any public utility as described in Article XII, Section 3, that is regulated by the California Public Utilities Commission and is not owned or operated by a public agency. Regulated public utilities are private property owners for purposes of this article.

(c) In any action by a property owner challenging a taking or damaging of his or her property, the court shall consider all relevant evidence and exercise its independent judgment, not limited to the administrative record and without deference to the findings of the public agency. The property owner shall be entitled to an award of reasonable costs and attorney fees from the public agency if the court finds that the agency’s actions are not in compliance with this section. In addition to other legal and equitable remedies that may be available, an owner whose property is taken or damaged for private use may bring an action for an injunction, a writ of mandate, or a declaration invalidating the action of the public agency.

(d) Nothing in this section prohibits a public agency or regulated public utility from entering into an agreement with a private property owner for the voluntary sale of property not subject to eminent domain, or a stipulation regarding the payment of just compensation.

(e) If property is acquired by a public agency through eminent domain, then before the agency may put the property to a use substantially different from the stated public use, or convey the property to another person or unaffiliated agency, the condemning agency must make a good faith effort to locate the private owner from whom the property was taken, and make a written offer to sell the property to him at the price which the agency paid for the property, increased only by the fair market value of any improvements, fixtures, or appurtenances added by the public agency, and reduced by the value attributable to any removal, destruction or waste of improvements, fixtures or appurtenances that had been acquired with the property. If property is repurchased by the former owner under this subdivision, it shall be taxed based on its pre-condemnation enrolled value, increased or decreased only as allowed herein, pIus any inflationary adjustments authorized by subdivision (b) of Section 2 of Article XIII A. The right to repurchase shall apply only to the owner from which the property was taken, and does not apply to heirs or successors of the owner or, if the owner was not a natural person, to an entity which ceases to legally exist.

(f) Nothing in this section prohibits a public agency from exercising its power of eminent domain to abate public nuisances or criminal activity.

(g) Nothing in this section shall be construed to prohibit or impair voluntary agreements between a property owner and a public agency to develop or rehabilitate affordable housing.

(h) Nothing in this section prohibits the California Public Utilities Commission from regulating public utility rates.

(i) Nothing in this section shall restrict the powers of the Governor to take or damage private property in connection with his or her powers under a declared state of emergency.

SECTION 4. IMPLEMENTATION AND AMENDMENT This act shall be self-executing. The Legislature may adopt laws to further the purposes of this act and aid in its implementation. No amendment to this act may be made except by a vote of the people pursuant to Article II or Article XVIII of the California Constitution.

SECTION 5. SEVERABILITY The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SECTION 6. EFFECTIVE DATE The provisions of this act shall become effective on the day following the election (“effective date”); except that any statute, charter provision, ordinance, or regulation by a public agency enacted prior to January 1, 2007, that limits the price a rental property owner may charge a tenant to occupy a residential rental unit (“unit”) or mobile home space (“space”) may remain in effect as to such unit or space after the effective date for so long as, but only so long as, at least one of the tenants of such unit or space as of the effective date (“qualified tenant”) continues to live in such unit or space as his or her principal place of residence. At such time as a unit or space no longer is used by any qualified tenant as his or her principal place of residence because, as to such unit or space, he or she has:

(a) voluntarily vacated;

(a) assigned, sublet, sold or transferred his or her tenancy rights either voluntarily or by court order;

(c) abandoned;

(d) died; or he or she has

(e) been evicted pursuant to paragraph (2), (3), (4) or (5) of Section 1161 of the Code of Civil Procedure or Section 798.56 of the Civil Code as in effect on January 1, 2007; then, and in such event, the provisions of this act shall be effective immediately as to such unit or space.


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June 2008: Endorsement Links

Endorsements from the editorial boards of various news and political organizations.

San Francisco Chronicle
98 : No --Prop. 98 is disingenuous and dangerous. It threatens to wreak havoc on the ability to achieve collective goals throughout the state. Gov. Arnold Schwarzenegger, former Gov. Pete Wilson and Sen. Dianne Feinstein all oppose 98 out of a concern that it could imperil this state's ability to assure an adequate water supply for the future. A Coastal Commission analysis warns that it could undermine efforts to protect the coast and keep it accessible to the public.
99 : Yes --Vote yes on Proposition 99. It has no hidden agendas, no ulterior motives and far less risk of unintended consequences than Proposition 98.

SF Bay Guardian
Proposition 98:NO, NO, NO
Proposition 99: YES, YES, YES
There's a little rhyme to help you remember which way to vote on this critical pair of ballot measures: "We hate 98, but 99 is fine."

Los Angeles Times
Proposition 98: No
Proposition 99: Yes
You wouldn't know from reading the ballot title and summary that Proposition 98 is an anti-rent-control measure, but that's become the primary focus of its financial backers, the vast majority of whom are landlords and rental property management companies.

San Jose Mercury News

Prop. 98: Eminent domain: No » read more

Prop. 99: Eminent domain: Yes » read more


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