Ballot Initiatives in 6 States Capitalize on Eminent Domain Outrage: Mother Jones Blog, 10/20/06

By April Rabkin

One sentiment that has cut across party lines in the past year is eminent domain outrage. Libertarians and environmentalists, Nascar dads and the NAACP, everyone seems to object to Kelo v. New London, the Supreme Court decision that allows a city to force working class neighborhoods to sell out to developers.

A year ago, at a public hearing about New London, I saw a shaggy, bearded activist in Connecticut read what sounded like beat poetry about eminent domain. Rumor had it that Urban Outfitters was selling "Kelo" shirts.

Joking aside, now developers are taking advantage of the public opposition.

I wrote a couple weeks ago how one New York real-estate magnate paid $5 million to get a few eminent domain initiatives on the state ballot. Such initiatives are on the ballot in six states that if passed would cripple environmental land-use regulation, and cost the states billions of dollars.

Called pay-or-waive schemes, they require the government to compensate landowners for new regulations that devalue their property, or waive the regulations altogether. (In Oregon, which already has pay-or-waive, property owners in the past three months filed more than $5 billion in claims).

Here's a rundown of the initiatives by state, from the Sightline Institute:

Most of the 2006 ballot measures have two distinct components: 1) they outlaw “Kelo-style eminent domain,” in which a government condemns private property and hands it over to a private party; 2) they introduce a “pay-or-waive” scheme: when new laws or regulations reduce the value of private property, the government must either compensate landowners or waive the law.
    • Introduces a pay-or-waive scheme affecting both real and personal property, retroactive to at least 1996; and creates extensive new requirements for property impact assessments. 933 mentions eminent domain, but includes no language that would change current eminent domain policy.
    • Status: 933 contains few safeguards for health and safety, public nuisances, or applying federal law. The measure’s retroactive clause will almost certainly clog the state’s courts with lawsuits - a danger worsened by a provision that taxpayers pay legal fees for both sides, win or lose. Unique among the 2006 measures, 933 applies to both real estate and personal property (which includes stocks and bonds, contracts, vehicles, livestock, and much more). Two independent analyses from the state’s Office of Financial Management and the University of Washington estimate that 933 would cost taxpayers approximately $8 billion in compensation in the first several years after it became law (ii). Opposed by a broad cross-section of Washington organizations, including many farm groups.

    • Outlaws Kelo-style eminent domain; and introduces a pay-or-waive scheme for new laws.
    • Status: Opposed by a large and diverse array of California organizations, including the state’s Farm Bureau, Chamber of Commerce, NAACP, and police, fire, labor, conservation, and homeowner groups. If enacted, Proposition 90 is estimated to cost California taxpayers tens of billions of dollars.

    • Outlaws Kelo-style eminent domain; and introduces a pay-or-waive scheme for new laws.
    • Status: Kelo-style eminent domain is already outlawed in Idaho. Local opponents warn that under Proposition 2’s pay-or-waive scheme recent community victories - such as a proposed coal-fired power plant near Burley, Idaho, which was turned away with broad populist support - could be overturned, with few rules or regulations remaining to protect local residents.

    • Outlaws Kelo-style eminent domain; and introduces a pay-or-waive scheme for new laws.
    • Status: Struck down by the Montana courts in September, along with two companion measures, because signature-gatherers engaged in what the judge termed a “pervasive and general pattern and practice of deceit, fraud and procedural non-compliance.” The Montana decision may have a ripple effect in other states because many of the tactics used by signature-gatherers in Montana were used to put property measures on the ballot in the other Western states. As of early October 2006, the Montana Supreme Court had not yet ruled in the case.

    • Introduced the nation’s first pay-or-waive scheme, retroactive for landowners who owned their property prior to the enactment of a regulation affecting their property’s value.
    • Status: Passed by voters in 2004. Key elements are still being litigated, but counties are actively granting waivers from land-use laws for Measure 37 claimants. There’s growing concern among Oregon’s residents that the measure goes too far in reducing protections for communities. As of August 2006, property owners had filed more than 2,200 claims totaling more than $5 billion.

    • Outlaws Kelo-style eminent domain; and introduces a pay-or-waive scheme for new laws.
    • Status: Opposed by the state’s conservation community, including the Grand Canyon chapter of the Sierra Club and other groups.

    • Outlaws Kelo-style eminent domain; and introduces a pay-or-waive scheme for new laws.
    • Status: The People’s Initiative to Stop the Taking of Our Land (PISTOL) was partially invalidated by the Nevada Supreme Court because it violates Nevada’s rule that initiatives may contain only a single subject. Only the Kelo-related portion will go before voters. Like Montana’s court decision, Nevada’s ruling may echo in the four other states where the property ballot measures contain both eminent domain reform and a pay-or-waive scheme.

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