Eminent-domain fight to move back to Legislature: Capitol Weekly News, 11/16/06

By Colin Rigley

Despite the rejection of Proposition 90 [in California], property-rights activists, local officials and state lawmakers all have eminent domain on their minds as they look to the 2007 legislative year - and the 2008 ballot.

The eminent-domain issue is still on the table, said Jean Hurst of the California State Association of Counties. "CSAC is very open and eager to resolving the eminent-domain abuse question."

But Proposition 90 supporters say the solution being crafted by local officials and developers - Proposition 90's strongest opponents - is not likely to satisfy them.

"I think you're going to see a lot of maneuvering on their part, and some interesting dynamics involved in the next year," said Kevin Spillane, who consulted the Yes on 90 campaign. "I think we can anticipate their plays, and we're going to take our own counter-measures based on what we know they're going to do."

The Legislature tried, through several different legislative vehicles, to deal with the issue in the wake of the U.S. Supreme Court decision in 2005 in the case of Kelo v. New London. The ruling effectively allowed for local governments to exercise eminent-domain rights to transfer private party to another owner if it constitutes a "public benefit."

"What they're trying to do now is a sham piece of leg which isn't pure Kelo reform, but simply claims to be," Spillane said. When asked if the fight over eminent domain was over, he said, "Oh, hell no."

The Kelo decision sparked a wildfire of legislation across the country, with over 30 state bills and propositions seeking to find a solution to the new ruling. Similar measures to Proposition 90 have passed elsewhere, such as in Arizona and Nevada, but opponents in California said the law effectively would undermine the zoning power of local governments.

Hurst said CSAC hopes the Legislature can come up with a compromise that avoids a rematch of the Proposition 90 ballot showdown. "I think that [the Legislature is] the best avenue. … I think you come up with a resolution that the Legislature can get behind, the governor can get behind. We've seen those types of things in the past."

"I expect the Legislature to take this issue up early. We are going to encourage them to do so," said Chris McKenzie, executive director of the League of California Cities. "We are prepared to sit down with the Legislature to negotiate a true eminent-domain procedure. … We can avoid a lot of the drafting problems that come with initiatives … through the Legislature."

Spillane downplayed chances of a compromise between the two sides. "These are not people who have a history of acting in good faith," he said, specifically naming developers, the League of Cities and the California Redevelopment Association as sources of his ire.

The League of Cities and CSAC were among the chief opponents of Proposition 90 this year, part of an ideologically diverse coalition that included the state Chamber of Commerce. Opponents of Proposition 90 felt that the sections of the measure pertaining to eminent domain were not the problem. "The proponents of Prop. 90 had an agenda," said Trudy Schafer of the League of Women Voters of California.

"California never was as subject to the problems that the Kelo decision revealed as other states. The fact was that in California, property was supposed to be blighted," said Schafer, who, among others, supported the more simple and direct language of Measure O.

Despite the failure of Proposition 90, proponents seem to be gearing up to put a similar measure back on the ballot. "I've received a number of press releases that say, 'Hey, we're [Prop. 90 proponents] back in '08,'" Hurst said. "I think I have folks who are really on both sides of the issue, but I think they understand the public's desire to see these kinds of reforms."

Of those who spoke on this issue, the general opinion is that Californians still express a strong desire to reform eminent-domain law. Proposition 90's failure does not seem indicative of a population that does not want to see these types of reform, but rather a sign that eminent-domain amendments need to get right to the heart of the issue. Private-to-private transfers still remain a serious concern, sliding more toward the evil side of the scale than necessary.

"Whether it is more controversial now with the failure of 90, I can't measure," McKenzie said. What does seem certain is a new wave of legislation aimed at this issue. "After the Kelo decision, after a lot of legislative debate, it became clear that the public was very interested in some kind of checks on so-called eminent-domain abuses. We are ready and willing to engage in those kinds of discussions," Hurst said.

A few local officials saw potential in Proposition 90, but were put off by the so-called tricky language, and therefore drafted measures of their own. Measure O in San Bernardino County and Measure P in Anaheim both passed despite Proposition 90's statewide failure.

Measure O was drafted by San Bernardino County Supervisor Bill Postmus in direct response to the Keno decision. "The reason San Bernardino County, or the board of supervisors, proposed this was the same reason why Prop. 90 was proposed … because of the Supreme Court decision. … The measure they drafted was actually very simple, it amended the county charter to 'prohibit the use of eminent domain by the county to acquire property from a private owner … without such owner's consent, for the purpose of conveying the property so acquired to any private party,'" said Postmus' spokesman David Zook.

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