Eminent Domain Targeted by Propositions 98 and 99

THE THINNEST CALIFORNIA BALLOT in memory offers just one issue for statewide voters to think about on June 3: the bitter controversy over government use of eminent domain to buy and bulldoze supposedly blighted properties on behalf of wealthy development firms to erect luxury housing, malls and other less-than-pressing private schemes.

Polls show Californians take a dim view of allowing politicians to force private-property owners to sell their land to make way for what some call progress. Until 2005 in the United States, government entities could only seize private-property for public uses, like schools or freeways (with controversial exceptions for so-called “blighted” areas). But that year, in a decision that is reverberating nationwide, the U.S. Supreme Court ruled in Kelo vs. City of New London that a private home, church or business can be forced into eminent domain by a redevelopment agency, city council or other governmental body intent on providing the land to a private developer.

Californians face two radically different choices for protecting such private property on the June 3 ballot. But the campaigns for propositions 98 and 99 have managed to create enough confusion, suspicion and hyperbole that fresh surveys indicate neither measure is currently luring the 50-percent-plus-one voters needed for passage. A poll by the Public Policy Institute of California last week showed that only 44 percent of voters like Proposition 99 and only 30 percent back Proposition 98.

The more encompassing measure, Prop. 98, would protect almost all private property from the use of eminent domain for the benefit of private developers. The much more narrow measure, Prop. 99, would prevent local and state governments from using eminent domain to take away single-family, owner-occupied homes for private development. No other kinds of properties would be protected.

Even so, Prop. 98, while it would clearly protect far more “little guy” building owners and landowners than Prop. 99, is turning off voters because, in addition to fighting eminent domain, it would also lift rent control on apartments and mobile-home parks in the event that current rent-control-protected tenants moved out.

California is not as heavily rent-controlled as many believe. Only about one in 35 residents in places like Santa Monica and Berkeley live in a price-controlled apartment or mobile home. In Los Angeles, there are more than 600,000 rent-controlled units, but rent control only applies to units built before 1978, and the city already uses a similar type of “rent-control lite” that would be created statewide by Prop. 98: Rents in L.A. can already be raised to market rates when a tenant moves out. But under Prop. 98 the unit would no longer be subject to any city or local rent controls.*

But the renters’-rights community, small as it may be, is a vociferous one, as the authors of Prop. 98 are learning.

Kathy Fairbanks, spokesperson for Prop. 99, says that Prop. 98’s goal “is to eliminate renter protections and eliminate rent control ... so landlords can make more money. They are running a deceptive ad campaign that mentions nothing about rent control. We don’t think voters will be fooled. They are reading their ballot pamphlets.”


BY THE SAME TOKEN, HOWEVER, Prop. 99 has problems that, while more subtle, also appear to be hurting it with voters: First, it would protect single-family homes only, and in California, single-family homes are not as widely targeted by government to benefit private developers. So, the measure would protect nothing.

Second, it’s an open secret that the elected leaders behind Prop. 99 wrote it in large part to include a “poison pill” clause that wipes out Prop. 98 if Prop. 99 gets more votes — a form of ballot-box misuse that doesn’t always sit well with election-weary California voters.

Jon Coupal of the Howard Jarvis Taxpayers Association, which is sponsoring the broader measure, says, “Proposition 99 is a sham.” Adds his colleague Kris Vosburg, “Our measure actually protects private property, while theirs does not.”

The money behind both measures shows that very little is coming from individual property owners worried about the Kelo ruling, but a lot is coming from rich special-interest groups with a direct stake in both measures’ fine print.

Prop. 99, the measure aimed only at single-family homes, has raised nearly $3 million from the League of California Cities, a major lobbying group that promotes the policies of California’s mostly prodevelopment city councils. The league’s members are among the most avid fans of using eminent domain against small-business properties to pursue redevelopment.

By the same token, Prop. 98 has raised slightly more than $3 million from apartment owners and associations, which would love to be able to lift rent control in those few cities that control the rent level even after the tenant moves out.

*Correction: Due to an editing error, this story originally stated that Los Angeles rent control applies to units built after 1978, when in fact the rule applies to pre-1978 units. A clarification was also made to make clear that Proposition 98 mimics L.A. rent control law by allowing landlords to raise rents to market levels if the current tenant moves out. But under Prop. 98, unlike under city law, once the current tenant moves, that unit is no longer subject to any rent control.

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