Son of Prop 90 – Eminent Domain

The following is an article by Vivian Kahn, FAICP:

The folks who brought us Prop. 13 are at it again. Having made a mess of California’s fiscal structure, they’re now out to undermine the ability of California’s communities to make decisions about how they’re going to grow, preserve natural resources, and maintain and provide affordable housing.

Prop. 90 was defeated last year in part because voters weren’t fooled by the sponsors’ attempt to deceive them by hiding damaging provisions under the eminent domain reform banner. They are doing it again. The so-called “California Property Owners and Farmland Protection Act” (CPOFPA) initiative, which some observers have dubbed the “Hidden Agendas” measure, would effectively abolish local zoning in California. The Howard Jarvis Taxpayer Association and its supporters, including the California Republican Party, are now circulating the initiative for signatures and misleading voters about its potentially dire effects. As of October 16, they had reportedly collected well over 700,000 signatures needed to qualify their measure for the June 2008 ballot. A minimum of 694,354 valid signatures must be collected by November 26, 2007 to qualify a measure for the June ballot.

The measure’s proponents (funded largely by big apartment and mobile home park owners) want voters to think it is just about eminent domain reform, but that’s just not the case. CPOFPA contains hidden provisions that would:

  • Prohibit or require compensation for local zoning and other land use decisions
  • Prohibit local rent control and affordable housing laws that protect seniors, veterans and others on fixed incomes, and
  • Prohibit state and local water agencies from using eminent domain to acquire land for new water storage and delivery systems.

Moreover, unlike Prop. 90, CPOFPA has no exception for actions taken by government to protect the public health or safety. In short, it would be just as big or a bigger disaster for taxpayers than Prop. 90 would have been.

The proponents claim that they’re only concerned about protecting homes and farms from being taken by government agencies but those who have taken a close look at the wording disagree. A legal analysis published last week by a Sacramento law firm that specializes in ballot measures (and includes some partners with solid GOP credentials!) has concluded that CPOFPA contains far-reaching, hidden provisions that would dramatically curtail the ability of cities and other governmental entities to protect public health, safety and welfare.

The analysis by Nielsen, Merksamer, Parrinello, Mueller & Naylor set out in great detail the secretive and deceptive way the authors of CPOFPA are attempting to hide broad restrictions on zoning and other land use and environmental regulations, the ability of public entities to acquire property for public water supply facilities, and city and county affordable housing and rent control programs.

Their analysis concludes:

“Without a doubt, the CPOFPA is even more deceptive and draconian than Proposition 90. With the exception of the rent control feature, the regulatory prohibitions concerning land use decisions and the prohibition against the use of eminent domain for the acquisition of property for the consumption of natural resources are hidden in the definition of private use. But the impact is nonetheless dramatic. Those obscure provisions are the only reference in the initiative to any form of “regulation” or prohibition against taking property for the “consumption of natural resources.” Because of the prohibitory nature of the regulatory and eminent domain provisions, the initiative appears to be designed to shut down much of what government does to protect the public health, safety and welfare through the control of land use and the provision of water. If there is any doubt on that point, the initiative Constitutional amendment provides the express right to seek injunctive relief against any action that violates its terms.”

Aware of public concern about how some public agencies have used the power of eminent domain, civic and environmental groups urged the legislature to put a measure on the ballot and enact companion statutory changes. Assembly Constitutional Amendment (ACA) 8, would have enacted protections for homeowners and small businesses but Senate Republicans prevented the measure from getting the necessary two-thirds vote to get it on the ballot. Fearing such an outcome, last Spring, the League of California Cities, the League of California Homeowners and the California League of Conservation Voters, joined together to propose the Homeowners Protection Act. This initiative would amend the constitution to prohibit government from using eminent domain to take an owner-occupied home to transfer to another private person or business. Supporters of this measure, which is a more reasoned response to concerns about the use of eminent domain, are also collecting signatures.

It is essential that voters understand the important distinctions between these two ballot measures, which would have a radically different effect on how California communities make decisions about their future.

For more information about the 2008 Homeowners Protection Act go to

Download and read the Homeowners and Private Property Protection Act