Eminent domain in California

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Eminent domain in California was the subject of Proposition 90 in 2006. Proposition 90 failed by 52.4%-47.6%. In June 2008, two new statewide ballot propositions addressing eminent domain--Proposition 98 and Proposition 99--are on the statewide California ballot, while supporters of a fourth statewide proposition, the Eminent Domain Protection Act, are circulating petitions headed for the November 2008 ballot.

What the California constitution says now

Article I, Section 19 of the California Constitution currently allows both the state government and local governments (cities, counties) the power of "eminent domain."

The power of eminent domain allows a government agency to take private property under certain defined circumstances. Generally, the reason for taking property from a private owner is if the government believes the land is required for a broader public benefit. Typically, this includes uses such as roads, libraries, utilities and schools.

California's law requires that when private land is taken for public use, the government must pay "just compensation."

In the 2005 U.S. Supreme Court decision, Kelo v. City of New London, the country's highest court also allowed a city in Connecticut, New London, to take private land from one owner and give it to another private owner. A local unit of government might wish to do that if they believe that the private owner to which they convey the property will develop the property in such a way that it would generate higher property tax and sales tax revenues. In the Connecticut case, a local family, the Kelo's, were forced to leave their home when the City of New London took their property under eminent domain and conveyed it to a private real estate developer. The Supreme Court said this seizure was justified because the new development made possible by the seizure would add to New London's tax base.

One way to look at the decision is that the act of adding to a city's tax base is an act that constitutes a "public use" because, as it happens, higher municipal taxes allow for the creation of more public benefits than would otherwise be possible.

This line of thought is what has caused advocates of strong private property rights to be concerned about how far California cities and counties might be prepared to go under the Kelo decision, and to therefore seek additional constitutional protections.

Language of Article 1, Section 19

Article 1, Section 19 of the California Constitution says, "Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. The Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount of just compensation."

How Proposition 98 would change the constitution

Proposition 98 prohibits units of government from seizing property and transferring it to:

  • Individuals,
  • Businesses,
  • Non-profit agencies.

It is important to note, however, that Prop 98 is a constitutional amendment generated by the same special-interest-funded “property rights” groups that have been working for years to wipe out environmental protections under the guise of “eminent domain reform.” (These groups sponsored the environmentally destructive Prop 90 in 2006, which Californians defeated.)

Apartment owners have provided much of the funding for Prop 98, so it is no surprise that the measure would ban many renters’ protections, such as a requirement for fair return of rental deposits [Tim Frank, Sierra Club California Advocate].

As under the current constitution, the government could still take property and convey it to a governmental agency--a city, county, school district, road district, etc. However, the government, under Proposition 98, would be forbidden to seize property and then use it in the same way that the original owner was using it. For example, under Proposition 98, a hypothetical city could not take an ice-cream stand from a private owner, convey it to city control, and then use the land for an ice-cream stand.

However, under 98, the restrictions it would impose on eminent domain are not relevant in cases where the government is:

  • Preventing a public nuisance,
  • Stopping a crime.

As under the current eminent domain provisions of the California Constitution, if 98 passes, the government would continue to be permitted to:

  • Use seized properties for public facilities (parks, public schools, roads, etc.)

Proposition 98 forbids bait-and-switch

Proposition 98 adds an element currently missing from the constitution; namely, under Proposition 98, the government is forbidden to take a property for one stated reason, and to then use it for an altogether different purpose. If that situation were to develop, under Proposition 98, the government would be required to offer to sell the property back to its original owner.

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