Senator wants eminent domain reform on ballot: Sacramento (CA) Bee, 12/22/05

By Daniel Weintraub

California conservatives are forever searching for the next Proposition 13, the property-tax-cutting initiative that tapped into a deep, bipartisan disgust with government in 1978 and ushered in an era of tax reductions and spending limits that ultimately helped pave the way for Ronald Reagan to win the presidency.

Have they found it in eminent domain? That long-standing policy, enshrined in the U.S. Constitution and state laws, allows the government to force the sale of private property for public use as long as it pays the owner fair market value in return.

The definition of "public use," once limited to highways, parks and the like, has evolved over the years to something more akin to "public purpose." Lately, the chief use of the power has been on behalf of economic development, with governments buying land considered blighted and then selling it to another private party to transform into other, more productive uses.

Decades of policy creep that slowly expanded the reach of eminent domain troubled some who followed the issue closely, but never excited the public much. Now that may be changing. Last summer's U.S. Supreme Court decision in the Kelo case has ignited a rebellion across the country that will likely play out here next year.

In Kelo, a case involving a Connecticut woman whose house was the object of the city of New London's desire, the court ruled that it was legal to take one person's home and sell it to another if the proposed new use of the land would produce higher tax revenues for the government. Although legal experts said the case broke little new ground, as an emotional touchstone it was different, and it triggered a countermovement to roll back the power of eminent domain through legislation and state constitutional amendments.

Texas and Alabama were among the first to pass laws limiting the power of local government to take homes and businesses for private profit. Earlier this month, the Pennsylvania Senate, in a unanimous vote, passed the Property Rights Protection Act, which would prohibit the use of eminent domain for commercial development and tighten the definition of blight. Then, both houses of the Michigan Legislature passed a constitutional amendment that would prohibit the taking of private property for transfer to another private entity "for the purpose of economic development or enhancement of tax revenues."

In California, Sen. Tom McClintock, a libertarian-leaning Republican from Simi Valley, introduced a similar measure, SCA 15. That proposed constitutional amendment would allow government to use eminent domain only to take private property for public use and would require that the government agency that takes private property retain ownership of it or lease it to a private entity regulated by the Public Utilities Commission.

McClintock's bill stalled in the Legislature, where Democrats pushed an alternative that would adopt a two-year moratorium on the use of eminent domain to take owner-occupied residential property for transfer to a private use. During the moratorium, the state Library's California Research Bureau would conduct a study on the use of eminent domain in California.

But McClintock isn't going to wait around. He has submitted two versions of his proposal as a ballot initiative, and he intends to begin circulating one of them for signatures early in 2006. One version is almost identical to the measure he tried to move in the Legislature. The other is more sweeping and would also roll back the government's right to restrict a property's potential use, and thus its value, through regulation. McClintock seems to be leaning toward the narrower version.

"There is nothing that stirs the American heart more than a manifest abuse of power that creates an injustice," McClintock told me last week. "Taking one person's home or business to give it to another for personal gain is exactly such an abuse of power." McClintock's proposal could sharply limit the scope of redevelopment in California, forcing the agencies that do such work to deal only with willing sellers if they intend to transfer title of the land to another private party. And even in those cases where property owners are willing to sell their land, the kind of constitutional protection McClintock is talking about would probably drive up the price of property government agencies are seeking to acquire.

Still, McClintock believes his proposal has the potential to attract wide bipartisan support, at least outside the halls of the Legislature.

Advocates for the poor and for minorities have expressed interest in the issue here and elsewhere. Rep. Maxine Waters, a Democrat from Los Angeles, has been working with Republican Rep. Richard Pombo of Tracy on a set of federal reforms aimed at the issue.

"Homes aren't being seized in upscale Republican neighborhoods," McClintock said. "They're being seized in working-class neighborhoods. Major corporations aren't suffering from the seizure of their businesses. It's mom-and-pop shops that are being seized. This is the theft by the politically powerful of property owned by the politically weak. That strikes a chord among honest liberals."

If he's correct, eminent domain may prove to be as powerful a political issue as it has been as public policy.

Sacramento Bee: www.sacbee.com