Going beyond eminent domain: Orange County CA Register, 10/9/06

Local measures are strongly supported, but the statewide Proposition 90 draws opposition

By Martin Wisckol and Peggy Lowe

Seal Beach's Charles Antos loves his city's small-town charm – something the councilman thinks he's protected just in the nick of time with a ban on three-story houses in Old Town.

Antos – like many city officials – believes that if the statewide Proposition 90 passes in November, it will spell the end of local control over land-use issues. So he helped rush through the ban in hopes of dodging a lesser-known element of Prop. 90, which is primarily touted for protecting property owners from cities abusing the use of eminent domain to take land.

"It would be a nightmare for the cities," Antos says of passage of the initiative.

Six local land-use measures will be on ballots from Anaheim to Dana Point, but casting a far larger shadow is the prospect of Prop. 90.

Proponents emphasize that the statewide initiative would stop cities from using eminent domain powers to take private land when they plan to turn it over to private developers for redevelopment and tax dollars.

Antos likes that eminent-domain part of the Prop. 90. So does Newport Beach Mayor Don Webb, who is backing a city measure that does the same thing. Both believe a city should forcibly take land only if needed for a public purpose like a street or a school.

But Prop. 90 goes beyond the issue of eminent domain, and that has turned Antos and Webb against it. The initiative says that whenever a city "downzones" – adds restrictions to the intensity of land use like new height limits – the city is liable for compensating property owners for any loss in property values.

Because of the vast potential cost of such compensation, Antos and other opponents say the measure would effectively block cities from making land-use changes.

Assemblywoman Mimi Walters, R-Laguna Niguel, is among the ardent backers of Prop. 90, and argues that portion of the initiative is a good thing. She uses the example of San Clemente, where the city is trying to restrict heights in the Shorecliffs neighborhood.

"They were already allowing people to build second stories, and now they're telling people they can't build second stories anymore," said Walters, honorary chairwoman of the Prop. 90 campaign. "That's not fair."

Cause célèbre
Controversial uses of eminent domain have gained national attention in recent years, and Orange County played a key role in raising the issue's profile.

In 1999, the Cottonwood Christian Center bought 18 acres in Cypress for a sanctuary and campus. But the city wanted to see a Costco on the property – sales taxes would flow to city coffers – and threatened eminent domain. A national debate on religious expression and redevelopment rights followed.

Then last year, a Connecticut case involving a homeowner's land taken for a private development landed in the Supreme Court. Justices backed the eminent domain acquisition, ruling against the plaintiff in Kelo v. New London.

"It became a cause célèbre essentially for property-rights advocates and conservative politicians, though many Democrats jumped on board when they saw the furor," said Matt Parlow, a property-rights law professor at Chapman School of Law.

Among those raising the banner for the burgeoning movement has been Howard Rich, a real estate investor from Manhattan. Rich has helped fund ballot measures in several states, and his Fund for Democracy spent $1.5 million to help get Prop. 90 on the ballot.

When it comes to banning the taking of private land for a Costco or some other profitable enterprise, opposition is hard to find. Newport Beach, Dana Point and Anaheim all have November ballot measures that would ban – or strengthen existing bans – on such use of eminent domain. There is virtually no opposition in any of the cities.

But Prop. 90's effort to extend property rights beyond the issue of eminent domain has attracted opposition from unexpected quarters – beyond council members like Antos and Webb.

The California Taxpayers' Association, which typically tries to restrict government's reach, opposes Prop. 90. Even the Republican leader of the state Senate, Irvine's Dick Ackerman, opposes it.

"I think you can put my property-rights record up against anyone's, but this goes too far," said Ackerman. "Sometimes down zoning can be abused, but sometimes it's needed."

Ackerman is also wary of another Prop. 90 provision that would increase a property owner's compensation if land is taken for public use – he says that provision would cost taxpayers more for land and would make litigation more likely.

Local control
Traditionally, redevelopment meant taking a rundown area and reviving it with public improvements and new building. But sometimes there would be a holdout property owner – one who didn't want to participate in the renewal project and also wouldn't sell. Eminent domain would then be used to take the property and avoid disrupting the larger redevelopment plans.

But "blighted" areas came to include land that had never been built on. And new construction often meant a high sales-tax generator, like a big-box store or a car dealer.

Then came the backlash and the argument that legitimate redevelopment should not require the forced taking of land for private enterprise. Indeed, 40 percent of the redevelopment agencies in the state have voluntarily set themselves up so that they have no authority to use eminent domain, said John Shirey, executive director of the California Redevelopment Association.

But Shirey says eminent domain should be controlled on the local level – not with new restrictions imposed by the state or feds.

"The decision is best made by local officials, who know their cities and who have to stand for re-election," said Shirey, whose group doesn't oppose local ordinances restricting redevelopment but is fighting Prop. 90.

As for the other land-use restrictions that would result from Prop. 90, even some supporters say that there may be shortcomings.

"Prop. 90 may not be an absolute perfect fix, but it is a fix," said Dana Point Councilman Jim Lacy, who also backs his city's more moderate eminent-domain ballot measure. "Without something like this, property rights will be violated."

Orange County CA Register: http://www.ocregister.com