Public Comment

Prop. 98 Would Deeply Subvert California’s Future

By John English
Thursday May 29, 2008 - 10:07:00 AM

Our state and our cities and counties are again in grave peril. At the November 2006 general election hugely harmful Proposition 90 failed by just a slim margin. Now the same greedy special interests are back with something even worse: Proposition 98. And they’ve cleverly timed it for the June 3 primary when (because the presidential-preference contest got moved earlier) voter turnout may be woefully low. 

Cunningly crafted and deeply deceptive, Prop. 98 is a multi-pronged assault on California’s ability to properly shape its future. 

It would mandate that (with very few exceptions most of which would apply very rarely) “Private property may not be taken or damaged for private use”—and would define some of those words in drastically and bizarrely sweeping terms. 

So-called “private use” would be defined to include, among other things, “regulation of the ownership, occupancy or use of privately owned real property or associated property rights in order to transfer an economic benefit to one or more private persons at the expense of the property owner.” But a great range of traditional and vital zoning, environmental, and other regulations that promote public health, safety, and/or general welfare necessarily have some effects that could be called a transfer of benefits. (Statutes and case law now give public agencies wide discretion in this regard.) To quote from a sober analysis done for the California Coastal Commission, “Many land use regulations can be construed to transfer an economic benefit from one property owner to another. For instance, regulations that limit the height of buildings confer a benefit on neighboring properties, at the expense of an owner who wants to build a taller building....Because taking or damaging property [for ‘private use’] is prohibited by the initiative, this broad definition [of ‘private use’] could prohibit outright many...types of government actions, rather than simply requiring [monetary compensation]....” 

And as the same analysis points out, “Unlike Proposition 90, Proposition 98 does not include a general ‘grandfather’ clause that would limit its provisions only to regulations and public agency actions taken after the enactment of the initiative....Public agencies sued by individuals trying to invalidate existing land use ordinances and regulations....” 

Homeowners, the real threat here isn’t eminent domain but, instead, 98’s potential gutting of public agencies’ ability—through zoning and otherwise—to safeguard your property values and quality of life. 

Prop. 98’s banned “private use” would also include any “transfer of ownership, occupancy or use of private property or associated property rights to a public agency for the consumption of natural resources or for the same or a substantially similar use as that made by the private owner.” The “...for the same or a substantially similar use...” part of that evidently would ban actions such as public acquisition of a utility company’s electricity distribution system. As another example, it would prohibit conserving open space through a beneficial arrangement whereby a public agency acquires either fee title or an open-space easement but lets the former grazing or farming use continue. The “...for the consumption of natural resources” wording apparently would bar public agencies from even doing things like acquiring water rights, or land for reservoirs, to help ensure a stable future water supply.  

Prop. 98 would cripple governments’ ability to conserve and promote affordable housing. Though making an exception for sitting tenants for as long as they stayed in their present units, it would otherwise totally prohibit rent control. It apparently would ban inclusionary ordinances that require providing some affordable units within a project. It could also ban some kinds of requirements on condo conversions. 

It could severely impair agencies’ ability to provide needed public facilities and services. It could bar agencies from requiring subdividers or other developers to contribute sites or pay impact fees for school, recreation, or other purposes. It would even inhibit agencies’ ability, as needs change over time, to efficiently reuse land they’ve already acquired through eminent domain. Prop. 98 would say that where the new use would be “substantially different” from the originally stated one, the public agency must first offer to sell the property to the specific owner it was acquired from. 

In some cases where a property is bought, Prop. 98 would likely result in an agency—and ultimately taxpayers—shelling out more for it. To avoid the increased hassle with eminent domain, agencies might pay an inflated price that owners would be emboldened to hold out for. 

Prop. 98 would significantly change the rules for pertinent lawsuits. It would require that “the court shall consider all relevant evidence and exercise its independent judgment, not limited to the administrative record [as is now typical in eminent domain cases] and without [the currently usual] deference to the findings of the public agency.” It would also say that whenever the court found the agency didn’t comply with 98’s rules, the owner could stick the agency for costs and attorney fees. 

Much of Prop. 98 is vaguely worded and this would surely invite numerous and diverse lawsuits. Till the wording eventually got interpreted through the court system, there’d be prolonged and paralyzing uncertainty. 

Don’t let the greedy fat cats hijack California’s future. If you want a sound and sustainable economy, a clean and healthy environment, and a humane and equitable society, then vote no on 98. 

And while you’re at it, vote yes on Proposition 99: a simple and straightforward measure without destructive hidden agendas. 

Finally, a special plea to Cal students and other young people, too many of whom often don’t bother to vote. June 3 is a biggie. It’s especially your future that’s at stake. 


John English is a longtime Berkeley resident who cares strongly about planning issues.