Public Comment

Commentary: Measure J and its Exemption From Proposition 90

By Laurie Bright
Friday November 03, 2006

The one thing that Mayor Bates and the Chamber of Commerce PAC won’t bring up in their campaign against Measure J is the fact that Measure J would be exempt from Proposition 90. 

Proposition 90 is the state initiative that would limit the power of eminent domain that cities often use to force property owners to sell their land to a public agency.  

In the Kelo v. City of New London ruling, the US Supreme Court said that states could enact their own laws limiting the use of eminent domain. Proposition 90 would enact such a law. Some of the provisions of Proposition 90 go much farther. They require a public agency to compensate owners for any “substantial economic loss to private property” suffered as a result of regulatory or zoning actions. The only exceptions are: 

(1) Taking property for a public use such as a road or a school or a park.  

(2) Legislation to protect the health and safety of the public, (both Measure J and our current Landmarks Preservation Ordinances (LPO) are expressly written with the common intent to protect the health and safety of the public). “The purpose of this legislation is to promote the health, safety and general welfare of the citizens of the city through: 1. The protection, enhancement, perpetuation and use of structures, sites and areas that are reminders of past eras…”(Measure J). 

(3) Regulations that existed prior to the passage of Proposition 90, are exempt . 

It is this last category of exemption that voters need to be aware of when choosing whether or not to vote for Measure J. The current Landmarks Ordinance and the amendments offered in Measure J would be exempt from the provisions of Proposition 90. 

It also appears from the language in Prop. 90, any subsequent ordinance passed by the City Council such as the mayor’s revised Landmarks Preservation Ordinance would not be exempt. The reason is that the mayor’s plan is not an amendment. It repeals the 32-year-old LPO and replaces it with an entirely new ordinance. This means that the Mayor’s new ordinance could be challenged by developers as new legislation and as such would fall under the provisions of Proposition 90. If this occurred, historic preservation in Berkeley would likely be over for all time. The city could not afford to defend a lawsuit every time a developer wanted to demolish a historic building or the city wanted to protect one. The practical result would be that the city would have no choice but to abandon preservation planning, and Berkeley neighborhoods would be left with no way to protect historic buildings. This should be frightening to any citizen who cares about neighborhood quality and character. 

It’s hard to believe that the mayor, the council majority and the developers are not aware of this fact. One cannot help but wonder if this is a backdoor attempt to end preservation in Berkeley using Proposition 90 as the weapon and votes against Measure J as the bullets. The current LPO has served the city and its neighborhoods well for 32 years. It would be a terrible loss to the future of our neighborhoods, if Berkeley voters are mislead by a few greedy developers using PAC money to kill historic preservation in Berkeley altogether. Please don’t take my word for it. Study the laws and Proposition 90, and then choose. If you do, I am sure you will choose to vote yes on Measure J. 


Laurie Bright is the president of the Council of Neighborhood Associations, a former chair of the Landmarks Preservation Commission and Board Member for the Berkeley Architectural Association.