Ken Garcia: Don’t be fooled: Prop. 90 would be disastrous for California

Few measures display the beauty and the scariness of California’s much-abused initiative process quite like Proposition 90, a slithering regulatory mess disguised as a sunny plan to protect property owners.

The initiative is the overwrought response to last year’s ruling by the U.S. Supreme Court that allowed the city of New London, Conn. to seize residents’ homes through eminent domain — an abuse that raised the ire of a government-wary nation.

So it was no surprise that someone would try to rein in the power of government by limiting its ability to acquire private property — or that land-rich California would be its testing ground.

You could still be supportive of a proposal to shrink government power but totally opposed to this measure. Rather than addressing the concerns raised in the Connecticut case, the proponents of Prop. 90 instead decided to stand reason on its head and redefine property rights in such a way that it could be a multibillion-dollar headache for state taxpayers.

And that’s just one of the eminently bad aspects of the initiative, which would negatively impact cities and counties throughout the state by limiting redevelopment in blighted areas.

Under the proposed measure, property owners would be allowed to sue for almost any action government takes that does not fall within a narrow band excluding public health and safety. The head of the California League of Conservation Voters has said the initiative would cause agencies to back away from protecting the environment out of fear that they would be sued by landowners.

And that fear is well-founded, as evidenced by a similar proposal passed by voters in Oregon two years ago. Since our timber-rich northern neighbor reformed its eminent domain regulations, people there have filed more than 2,000 loss claims at a cost of more than $5 billion.

Prop. 90 has the potential to be the golden fleece for land-use lawyers. According to the Legislative Analyst’s Office, the measure would make local and state governments reimburse property owners for the cost of any new laws and rules regarding everything from apartment prices to employment conditions to historic preservation. So if a city feels a need to rezone a city block for planning purposes, it’s a potential payday for any litigious property owner.

When they decided to go after the government’s power, the initiative backers apparently couldn’t rein themselves in. Not only does the measure invite lawsuits, it redefines what just compensation is so that agencies would likely have to pay more for property than fair market value. This might be the first time developers hope that a burrowed owl or another endangered species is found on their land — since under the broad provisions in Prop. 90 they could go to court to claim financial damage.

You might think it would take someone with a vested interest in property development to come up with a overreaching measure like Prop. 90 — and you’d be right. The initiative is the handiwork of New York real estate baron Howie Rich, who is bankrolling it along with a national group of property rights activists. But their “protect our homes’’ initiative could just as easily be known at the “fill our pocketbooks’’ measure, which may explain why many of the donors in the group pushing for its passage have declined to be identified.

Clearly there are cases when agencies abuse the power granted to them under eminent domain guidelines. A few years back, the Board of Supervisors voted to take away the property of some developers in North Beach — allegedly for a park — at a time they were also claiming there wasn’t enough housing in San Francisco. And last year the city of Oakland wrested two auto shops from the owner to give to a developer who wanted to build some below-market-rate condominiums.

But tinkering with eminent domain regulations is one thing. Prop. 90 is quite another — the sledgehammer approach to public policy. At a time the state is poised to pass several major bond measures to fix California’s fragile system of roads and waterways, Prop. 90 is a threat to development and planning that cities and counties routinely do to handle future growth.

That will explain why a whole host of business groups and taxpayer organizations — those that usually are at the forefront of limiting government reach — have lined up against the initiative.

Clamping down on government is not a bad idea — but it shouldn’t be done in such a way that it rids agencies of the ability to control density or preserve historic structures. Prop. 90 is a case study of what happens when ideology invades the initiative process — a bad deal packaged as an electoral gift.

Ken Garcia’s column appears weekends in The Examiner. E-mail him at or call him at (415) 359-2663.

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