Metropolitan News-Enterprise


Wednesday, July 11, 2007


Page 7



Protecting Property Rights in California




The Constitution of the State of California provides that “All people by nature are free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing and protecting property . . . .” Property rights are a fundamental, core American value.

The Fifth Amendment to the U. S. Constitution, as well as Article I Section 19 of the California Constitution, prevents the government from taking private property for public use without the payment of just compensation. Unfortunately, the courts have slowly eroded these protections. A lot of damage has been inflicted on this constitutional principle by the virtual elimination of the “public use” requirement. Historically, government could only take private property for “public uses” such as roads, parks, fire stations and other government occupied buildings.

Over time, the courts have changed the “public use” requirement into a “public purpose” requirement. The new “public purpose” requirement no longer required the government to use the property but simply to articulate some “public benefit” that will be achieved by taking the private property. This new “public benefit” test allows government to take property for any public benefit even if the property will not be used by government. Courts now allow the taking of private property in order to transfer that property to another private party so long as the government can state some public benefit, including the “benefit” of generating more tax dollars.

The elimination of the “public use” requirement struck a nerve of the American people when the U.S. Supreme Court ruled in the case of Kelo v City of New London,125 S. Ct. 2655 (2005). In the Kelo case, a family that had owned and occupied their house for over 100 years was forced out of their home so that the City of New London, Connecticut could implement an economic development plan that would result in greater tax revenues for the city. If homeowners with such deep roots in their property can be evicted and their home demolished simply to increase tax revenues, no citizen’s property rights are secure.

If there is any silver lining to the high court’s Kelo decision it was that the court acknowledged that states were free to provide more property rights protections than the minimum “floor” mandatedby the federal constitution

The resulting firestorm after Kelo led property rights advocates throughout America to propose changes in state law. More enlightened officials in several states acted quickly to ratify what most had presumed to be the law in the first place: That is, that government could only use the draconian power of eminent domain to take property for truly public uses.

Here in California, the Legislature — while nibbling at the edges — has failed to provide meaningful protection. Although State Senator Tom McClintock and Assemblywoman Mimi Walters have introduced proposed constitutional amendments to provide enhanced protections, these proposals have been stymied by pro-government legislators. Those who support the status quo are now backing Assembly Constitutional Amendment 8, by Hector De La Torre, which has cosmetic appeal, but provides no serious protection against the abuse of eminent domain to seize property. Sacramento Bee columnist Dan Walters described ACA 8 as “very limited and unfair” while the Orange County register called it “‘Reform’ that’s worse than doing nothing.”

During the last election cycle, a variety of property rights advocates put Proposition 90 on the ballot. While Prop 90 would have prevented “Kelo takings,” meaning that property could not be seized for the purpose of private use by someone else, it also delved into the area of “regulatory” takings. Regulatory takings are government action — short of actually acquiring title to the property — which significantly reduce the value of property. It is a complex area of the law and Prop 90‘s opponents were able to convince the voting public that Prop 90 went too far.

Despite a huge funding advantage and a well executed campaign, opponents of Prop 90 barely squeaked out a victory in November of 2006. Subsequent polling suggests that Californians still want some protection against government from abusing their property rights. In other words, the issue is far from dead.

A coalition of groups concerned with property rights came together shortly after Prop 90’s defeat including the California Farm Bureau Federation, Howard Jarvis Taxpayers Association and The California Alliance to Protect Private Property Rights. The goal was to draft a property rights amendment to the California Constitution but to avoid some of the pitfalls encountered by other efforts. The California Property Owners & Farmland Protection Act (CPOFPA) reasserts our rights as citizens — protecting current and future property owners from unjust property seizures by local government under the auspices of a “public good.”

Key provisions of the Act provide that:

Private property cannot be taken under eminent domain for private use, no exceptions (i.e., to build a retail mall, auto mall or industrial park).

Property can only be taken by eminent domain for public use (i.e., freeway construction, parks, schools).

Property cannot be taken and used for the same purposes (i.e.,

residential housing property cannot be used for government housing).

Government cannot determine the price at which property owners sell or lease their property. Implementation of this provision will be executed via “permanent vacancy decontrol” in areas where rent regulation/rent stabilization measures are currently enacted.

Family farms and open space are protected from seizures by local government to use the land and natural resources for other purposes (such as housing developments).

(The writer is an attorney and president of the Howard Jarvis Taxpayers Association.)


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