California Conservatives Wage Ballot Battle to Protect Private Property (Proposition 90)

Mr. DeVore (R.-Irvine) represents 450,000 people in coastal Orange County's 70th Assembly District. He also serves as a lieutenant colonel in the Army National Guard.

California is known for titanic and sometimes meaningful political battles, and this year is proving no exception. Among the seven statewide candidates and 13 ballot measures are three particularly high-profile campaigns, accounting for more than $200 million in campaign spending. These include the Schwarzenegger-Angelides race for governor as well as two ballot measures, Proposition 86, a $2.60-per-pack tobacco tax increase, and Proposition 87, a $4-billion tax on oil to fund research on ethanol and other alternative fuels.

Sailing just under the radar with less than $7 million in combined spending from the support and opposition camps is Proposition 90, the most far reaching and potentially most significant state-level political event in America this year. Proposition 90 is a state constitutional amendment with the short title of “Government Acquisition, Regulation of Private Property.” It seeks to reform both eminent domain abuse and regulatory takings.

In the wake of last year’s disastrous Supreme Court Kelo ruling, conservative California lawmakers tried to pass legislation in Sacramento to guard property rights. Their efforts were blocked by the Democrat majority. Not easily deterred, State Sen. Tom McClintock, the GOP candidate for lieutenant governor, turned to the initiative process for remedy. California constitutional amendment initiatives require 598,105 valid signatures to reach the ballot, however, causing Sen. McClintock’s effort to stall for lack of the more than $1 million needed to qualify a measure in the state of 37 million people.

Enter libertarian financier Howard Rich of New York. Rich, a director at the Cato Institute, chairman of Americans for Limited Government, and president of U.S. Term Limits, invested the needed $2.5 million to draft Proposition 90 and qualify it for the ballot. A Rich-allied group named Montanans In Action kicked in another $600,000. In total, the pro-Proposition 90 forces raised $3.7 million by the end of September, having a balance of about $343,000 cash on hand, small by California standards.

Proposition 90’s opponents are a mighty array of almost the entire apparatus of local government and nearly every environmental group, developers, redevelopment agencies and construction companies. Environmental groups have raised almost $500,000 to spend against Proposition 90 while local government has banked $2.5 million, with $1.3 million cash on hand—barely enough to run a few cable TV ads.

There is scant polling data available on Proposition 90, but what there is suggests that it strikes a chord in the heart of voters disgusted by the Kelo decision, with Proposition 90 running ahead in some cites by as much as three to one.

Assuming Proposition 90 passes in California, as now seems likely, what might be its effect? Government advocates warn that restricting the government’s ability to seize homes and businesses for development would also increase the cost to build freeways, schools, and levees. This has the potential of doubling the cost of government-sponsored infrastructure projects such as those paid for by the $37.3 billion in bonds placed on the November ballot earlier this year by the legislature.

The reason for the alarm is that Proposition 90 would entitle property owners forced to sell through eminent domain to compensation based on the value of the land after if it was rezoned to allow a higher use. In other words, it prevents government, redevelopment agencies and private developers from enriching themselves by using the government’s ability to target and seize land from individuals. Thus, Proposition 90 rightfully restores the value of land taken to the original property owner. This addresses the crux of the Kelo case, and this is why California voters are instinctively supporting the measure in large numbers.

If the eminent domain curbs in Proposition 90 cause alarm, then its provisions on regulatory takings instill loathing at both city hall and the Sierra Club. A regulatory taking occurs when government levies new restrictions on a property owner that serve to diminish the value of the property. This most frequently happens two ways: down-zoning and environmental regulations. Proposition 90 would not overturn existing environmental rules and government restrictions on the use of land, as happened with Oregon’s Measure 37 in 2004, but it would protect landowners from overreaching government power going forward.

Regulatory takings can be even more pernicious than eminent domain. A regulatory taking is, by definition, a non-compensating event in which a landowner’s right to use his property as he purchased it to be used is restricted after the fact, reducing the value of the land in some cases to virtually nothing. The “virtually” point is important as courts have ruled that so long as landowners retain some bit of value, then the government does not have to compensate the landowner.

Proposition 90’s opponents claim that the regulatory takings provision alone may cost California’s public agencies billions of dollars. Of course, that depends entirely on whether those agencies will continue to demand benefits for the public at large by placing uncompensated restrictions on individual landowners. What some would call good government, others would call theft.

While government and environmental groups may not have much money to stop Proposition 90 in November, history’s guide tells us they will fight it in the courts. Government agencies will no doubt battle Proposition 90 to the bitter end, using taxpayer funded lawsuits until its twin defense of property rights is ruled unconstitutional.

From Flash Report:

Prop 90 Foes, Well-heeled But Few
by Assemblyman Doug LaMalfa - North California
10-29-2006
Our Nation's Founders would recoil at the reasoning that is being used against Proposition 90. I'm really disappointed by some of these people that we as Republicans have worked with to make things right in their relationship with state government. I've been a long time advocate of returning power to the most local level, to work to relieve mandates, especially unfunded ones. To keep the state from ripping off local dollars from cities, counties and special districts, because I firmly believe that locals have a better idea what local needs are than Sacramento or Washington DC.
I was a strong supporter of the "previous" Prop 1A that made a giant move towards doing that, protecting local dollars from the state, and devolving power back to the local level. Cities and counties don't like it when the state sticks it to them.
But now the shoe is on the other foot. Local government wants to keep the power to stick it to an even more local government: you, your family, your home, your farm, your business, the individual. It's more convenient to use the power of eminent domain to wipe away someone thought of as in the way of the 'vision' of as few as 3 people on a council or board for land use in their purview. Or to change the course of a person's life-investment in their land because those in power like to drive by and see 'open space' when they look out over what you've toiled to form into your vision for it. Never mind that your bank/partner still expects to be paid for the full value before the wand of government that just waved over your property has now devalued it down to perhaps useless to you and any prospective buyer. Oh, and keep sending in those property tax dollars too!
This all plays nicely into the hands of the extreme wing of the environmental movement. Having all these new partners from business and local government join the chorus against Prop 90 is something to behold. Prop 90 is a long needed "correction" to swing the pendulum back towards the individual rights of property ownership, property usage, or the truly fair compensation for a justifiable taking, [even fair compensation for unjustifiable flimsy excuse for takings in the name of 'environmental mitigation' or someone's idea of what open space should look like. Without ESA reform, these instances no doubt will still occur]
The business organizations that are paying 'protection money' against 90 to curry favor with the government bosses that will issue the building permits, the zoning changes, the rights-of-way usage they need, disappoint me. They either buy The Lie or don't care about individual rights as much as getting their next permit.
The Colonists came here with a vision of the type of freedom to own land, a cornerstone principle of why they even bothered to fight a Revolutionary War against the Crown. That coupled with the freedom of religion, not a state sponsored one, were key to the Founders.
We are losing both of these cornerstones. Unless you are a participant in a politically correct religion or politically correct usage of your land, you would likely agree. The Colonists and later immigrants, most all come here with a similar dream to make it here, to have what their old oppressive governments won't allow them to own, or that tax them so much they can never afford to own, a home, land, a farm, their own business. Do we want to foster that oppressive thought here now?
The sky-is-falling rhetoric by the opposition is much the same as the arguments against Propostion 13 back in 1978. Many of the same characters with their tales of doom for local government and services about passage of Prop 13 are the ones bleating the same old saw against 90 today. What if 13 had been defeated? The unchecked taxation of homes and property would make ownership of them a privilige of the elite. The elderly and retired, young families... forget owning a home or land. The circumstances between the 2 propositions are remarkably similar. The Establishment will fight landmark change that benefits the individual tooth-and-nail, it always will. That's why Jefferson said a revolution every now and then is a good thing. We know what happens to people that try to undercut Prop 13 publicly. The same accountability needs to be held for those that undercut Prop 90, like Prop 13, a revolutionary change in favor of individual rights.
(snip)

Prop 90 has been undermined by some of the very folks that are supposed to be supporting it. The campaign consultant hired by the GOP to work FOR Prop 90 was also on the payroll of the NO on Prop 90 campaign.

www.petitionspot.com/petitions/FireMartyWilson

Fire Marty Wilson!
Created by Nick Jenkins on October 17th, 2006
Political Consultant Marty Wilson has violated his duty to the California Republican party as a third party contractor and should be terminated immediatley and return all payments from the party since he joined the No on 90 campaign.
Just a few weeks ago Mimi Waters and other proponents of Proposition 90 were attempting to include information promoting the initiative on all California Republican Party materials. Eminent Domain across the country and Proposition 90 in particular has shown to be a very good motivator for Republicans and widespread promotion would likely lead to higher conservative turnout on election day.
But California Republican Party consultant Marty Wilson was insistent that no yes on 90 materials were to be included without a large payout from their campaign. Wilson became so hostile as to verbally berate opposing members of the Party Board.
The real problem with this is not Wilson's disagreement that the material should be included but that he was on two payrolls at once. While recieving $15,000 a month from the CA Republican Party Wilson's firm Wilson-Miller was also recieving $15,000 payments from the NO on 90 campaign.
It is clear whose interest Marty Wilson was representing. We demand that he be fired immediately and that his money is returned.

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