Posted on 10/17/2006 4:59:44 PM PDT by SierraWasp
Community vs. individual
By Lisa Vorderbrueggen CONTRA COSTA TIMES
Behind Proposition 90's land-use legalese is an abiding societal dilemma: When do the rights of the community trump the rights of the individual?
Initiative proponents say government is too heavy-handed and property owners are unfairly bearing the costs of community amenities such as open space and wildlife habitat.
Prop. 90 would bar governments from taking private land, through a legal process called eminent domain, for the purposes of turning it over to a private developer. And it would force local agencies to pay landowners for broadly defined losses that result from new land-use laws unless they are necessary for public health and safety.
"If the community wants a benefit, the community has to pay for the benefit," said Adrian Moore, vice president of the Los Angeles-based Reason Foundation. "The fact that people feel entitled to tell everyone else around them what they can do with their land is the reason we have Prop. 90."
But a coalition of unlikely bedfellows, ranging from the League of Conservation Voters to the California Chamber of Commerce to the California Farm Bureau, call the measure a disaster for communities, taxpayers and the environment.
"This measure will make the protection of natural resources and our communities completely impractical for California agencies at all levels," said League of Conservation Voters President Tom Adams. "No one likes eminent domain abuse, but the proponents are using it as a poster child to enact an extremist agenda that an overwhelming number of Californians do not support."
In truth, the opposition is largely unconcerned about the proposition's eminent domain restrictions, which would largely impact communities involved in the redevelopment of blighted areas.
In Pleasant Hill, for example, the city used eminent domain to obtain the final parcels required for its new downtown commercial row. If Prop. 90 passes, cities could no longer use eminent domain to assemble land for private developers but must rely solely on the willingness of landowners to sell. Agencies could still use it for publicly owned projects such as roads.
Instead, critics are focused on the initiative's requirement that government pay landowners for losses related to new regulations.
Open space and wildlife protections would disappear, they predict, because local agencies already struggling to pay for the land would be even more unlikely to raise enough money to pay for lost profits.
Local governments, they say, would be forced to approve developments that residents don't want and waive conditions designed to alleviate impacts or pay owners millions of dollars.
Cities would no longer revise zoning and master plans, they say, in order to avoid changes that would trigger claims and lawsuits.
And governments, they say, would find themselves tied up in court for years and forced to pay millions in legal fees as agencies and landowners seek court interpretations of the proposition's language.
"This measure would seriously undermine the ability of California communities to plan their futures," said Vivian Kahn, Bay Area planner and chairwoman of the California chapter of the American Planning Association's Prop. 90 task force.
The measure will not, she said, preserve homes despite its title, "Protect Our Homes."
"People forget that the value of their property increases when good planning exists," Kahn said. "A house is worth more if it's next to a park and good schools than if it's next to a billboard or a gravel pit. If you make decisions that are for the good of the community as a whole, it benefits everyone."
The opponents' characterizations are both specious and inaccurate, countered San Francisco-based Pacific Research Institute author Steven Greenhut in his analysis of the measure, "Righting Property Wrongs."
Current environmental laws are not affected, legitimate planning will continue and the threat of lawsuits, he wrote, is overstated.
"Locals would still have control over land-use and regulation but they would no longer be allowed to abuse the Fifth Amendment," he wrote. "That would be an enormous improvement."
Prop. 90 is part of a national property rights rebellion that gained momentum after last year's Kelo vs. New London U.S. Supreme Court decision. The justices ruled in favor of the city, which used eminent domain to seize land from homeowners in a depressed area and turn it over to a developer for economic development.
The ruling inspired dozens of property rights initiatives.
Two dozen states have enacted laws this year that bar or restrict eminent domain and others are pending.
In addition to California, voters in three other western states -- Arizona, Idaho and Washington -- will consider similar property rights measures in the midterm election. Measures in Nevada and Montana have been partially or wholly invalidated due to challenges, and their status is uncertain.
Of these, Washington's measure is considered the most restrictive. Unlike California, its measure applies retroactively and includes personal property such as cars and pets.
Most of the initiatives have been bankrolled by New York Libertarian Howard Rich.
In the eight states with initiatives, Rich-led organizations provided 88 percent of the funding, according to the Center for Public Integrity. In California, Rich's groups have contributed $3.3 million of the $3.6 million collected.
Both sides point to Oregon as the model for their viewpoints, a state where voters passed a similar measure in 2004.
Proponents say Oregon's Measure 37 is working precisely as it was intended and the sky hasn't fallen.
"Measure 37 is still overwhelmingly popular," said Moore with the Reason Foundation. "Some people haven't liked the outcome because they can't use law anymore to stop people from doing something they don't like unless they are willing to pay."
But critics say the measure will potentially cost Oregon taxpayers billions and deprive residents of any local say over what happens in their towns.
Oregon landowners have filed more than $5 billion in claims for lost property value. That includes $200 million for an owner who wants to build a pumice mine, geothermal energy plant and vacation resort within the Newberry Crater National Monument.
Near Portland, critics blame Measure 37 for forcing local officials to approve a gravel mine next door to a suburban neighborhood. The county didn't have the money to pay the landowner for the loss of potential profits from the gravel mine, as the measure required, so it was approved.
"That's nice for the mine owner but what about the rights of the neighbors? Fairness ought to go both directions," said Eric de Place with Sightline Institute, a Seattle-based environmental sustainability group. "Planning laws may not be perfect, but when one landowner can extort his community and circumvent the will of the community, it's not a good idea."
Please notice how deftly the author tries to subtly and stealthily submarine Prop 90!!! This is rife with subliminal suggestions that this awful proposition could strike at the very heart of aggressive government central planners!!!
[If Prop. 90 passes, cities could no longer use eminent domain to assemble land for private developers but must rely solely on the willingness of landowners to sell. Agencies could still use it for publicly owned projects such as roads.]
Well imagine having to rely on the landowner to agree to sell. Just darn.
This is rich indeed. Private property rights trump all. When this changes we'll all get acquainted with the exact length and width of the shaft. Sure, there are rare exceptions to this rule - but the concept of eminent domain is absurdly out of hand.
Kind of consistent, isn't it, considering the source???
I swear, if there wasn't the Proposition system in California, the State would be a third world country.
There are two basic rights in the Constitution - - they are the right to person and the right to property. All of the enumerated freedoms speak to examples of those rights or enforcement of those rights. The enumerated powers were not designed to trump those rights but rather to work within and alongside those rights.
Is this the end of the end of the Coastal Commission and it's mandates...
That we are forced to go this route is an affront to everything the Founders believed. IMO, every SCOTUS justice who went along with this abomination should have been impeached.
While I served a term on our county board, one lady came before us pleading for the county to buy her property for it's "assessed valuation" (far below market value) since the new "General Plan" had effectively made her property un-sellable! No one would buy it at ANY price.
My fellow board members just could NOT see a problem with this and thought I was absolutely NUTS to tie the proceedings up for weeks in an effort to help them see that this damsel was in distress and that government was NOT being her friend!!!
Investment backed expectations mean absolutely NOTHING to these ELECTED board members and the "community" slumbers on while individuals get financially crucified in America!!! Welcome to the USSA!!! (Oh! And this isn't as bad as the eminent domain thing)
There is always abuse. Do you think, on the whole, the ability of Californians, to directly petition the people is a good thing or bad?
See #12 for similar situation as what you've described.
Huh? I no comprehende', Senor!!!
"if there wasn't the Proposition system in California, the State would be a third world country."
When did the Pdroposition system ever do anything but slow down the California race to be a 3rd world country?
Hmmmm.
I'll have to give Lisa a call and find out what her personal take is on Prop 90. She's young, yet, but shows some promise if she doesn't get sucked into the swirling vortex surrounding here at the CoCoTimes. That'll be RALLY hard if she values her paycheck above her principles, but it isn't impossible.
Stepping back from the proposition pro/con and simply reading the article as a journalistic exerceise, I thought she did a fair job of peppering cites both pro and con throughout the article to give a decent picture of both sides of the coin. This isn't part of what's posted, but if you click the link to the CoCoTimes you can look down at the very bottom and see that she simply lists a few recent local cases involving eminent domain. So, it appears that, at least on the face of it, she wasn't making any attepmt to take sides, and, overall, I thought her presentation fairly dispassionate; a decent attempt to inform as to the players and points on the tabel in this debate.
Now, of course, the cites against Prop 90 are just so much unfiltered bilgewater, but saying so wasn't the goal Lisa's boss had in mind when assigning her the article.
Well, you and your lawyer had better giddy up and start suing, cause these control freaks are gonna rip you and your investment/wallet a new one... bet on it! I've lived among 'em for four years!!!
If you were stupid enough to have bought into a "Planned Development" aka "gated communutty," you will also have bought into a legal concept in CA RE law called "equitable servitude!" I assure you it is actually "involuntary servitude" aka "slavery" after you move in!!!
Have you ever listened to Phil Hendrie and his character "Bobbie Doolie?" She's the PRESIDENT (read tyrant) of the Western Propertyowners Homeowners Association and brother Czar, it's one of the funniest comedy routines I believe I've ever heard in my life!!! She is the "Czar" of those poor subjects of her's to be sure!!!
I see Prop 90 has the usual collection of collectivists upset.
OH, GOD!!!! We can't steal private land for government nature reserves without paying compensation. Why, that's bloody hell un-American.
"Open space and wildlife protections would disappear..."
No, Ms. Marxist, you are entitled to all the private land you want for red-legged frogs as long as you pay for it. Now you might end up paying a million bucks an acre, but that's what market-based economics is all about. Plus paying compensation for land RESTRICTS THIEVING GOVERNMENT FROM STEALING PRIVATE PROPERTY!!!
Does this hack writer have even a vague clue what fascism is or soviet socialism?
"People forget that the value of their property increases when good planning exists," Kahn said...."
Now that's the kind of blabber I'd expect from the chief goosestepper at the American Planning Association.
No, you're wrong, Ms. Smarxist Growth. The purpose of property is not to hope its value increases due to "good planning." The purpose of private property is to advance individual freedom, you Marxist moron.
BTW, the apparatchniks at APA are passing out a planning book to all legislatures in all the states that they want all states to pass into law. Tucked away in the soft law gobbledygook is a proposal to fine and eventually seize property that does not conform to a planning committees notion of "community aesthetics."
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