Proposition 90: The Most Evil Ballot Measure for the Environment California Has Seen

Progressivism Gone Wrong

What do we as progressives believe? We believe in a Government that protects the most vulnerable among us. We believe that corporate power should be checked. We believe that people have the right to know what their elected officials are doing and who is funding them.

Yet the opponents of Prop. 90 do not seem to believe in any of these things. In the following article by Bill Allayaud he says that the backer, one Howie Rich, is a wealthy Libertarian developer, this may be true but if we are to follow this logic lets also look at who the supporters of the no campaign are. The no campaign has received over $2 million from the League of California Cities and hundreds of thousands more from their redevelopment authorities, $400,000 from the California Public Securities Assoc. a coalition of major investment banks and financial firms including J.P. Morgan, they have also received hundreds of thousands of dollars from developers, lawyers and energy companies. The precise people opponents say that this initiative will be helping.

This leads us to wonder- if Prop. 90 were to pass who would it help, the average homeowner or the developers and lawyers who have put up millions to defeat it.

As a progressive I support Prop. 90 for two reasons:
1. It helps protect middle class and poor homeowners from big developers who want to build a mall or theme park. It also protects them from undue de-zoning or other regulatory attempts prompted by expensive corporate lawyers.
2. 2. It provides environmental lawyers additional tools to sue the government for not protecting the environment enough.

While there have been deceptive and misleading attacks against Prop. 90 the most egregious came just two days ago from Bill Allayaud of the Sierra Club of California. I had always thought that the Sierra club was in favor of limiting development and land taking, we find that this is evidently not the case.

I offer below a paragraph-by-paragraph rebuttal to his story:

Measure for the Environment California Has Seen

By Bill Allayaud
State Director, Sierra Club California

I am asking you to forward this article to everyone you know who votes in California, as Proposition 90 on the November 7th ballot is THE MOST EVIL measure for the environment that we have ever seen on a ballot. I will tell you what the measure means and why passing this on to everyone you know could be the difference between it passing or losing.

Most progressives would find Prop. 13 which drastically reduced the revenue available to the state and municipalities to protect and preserve the environment a dangerous proposition- evidently not as dangerous as one that stops developers from building multiplexes and high rises.

The backer of Prop 90 is a Libertarian developer from New York City named Howie Rich (he is also head of a group called Americans for Limited Government). He wants you to believe this is about cities using the power of eminent domain to take single family homes to allow private development. Since to most people this sounds patently unfair, they instinctively want to vote yes. However, what Mr. Rich is really trying to do is attack the fundamental ability of city, county, and state government to regulate the use of private property and is using the eminent domain issue to cover his real agenda.

(from a previous post)

League of California Cities Over $2 million
California Redevelopment Authority $363,283
Forest City Residential West, Inc. $250,000
Pg&e $250,000
Edison Intl. $200,000
California Assoc. of Realtors $100,000
California Nations Gaming Assoc. $100,000
Willdan Group $50,000
Best, Best and Krieger $25,000
Keyser Marston Assoc. $25,000
Mcdonough, Holland & Allen $25,000
Robertson’s Ready Mix $25,000
Samuelson & Fetter $25,000
CA Business Properties Assoc. $20,000
Stone & Youngberg $20,000
Overland Pacific & Cutler, Inc. $20,000
Orrick, Herrington & Sutcliffe $12,000
Burke, Willians & Sorensen $10,000
Hopkins Real Estate Group $10,000
Jone Hall, A Professional Law Group $10,000
Mclarland Vasquez Emsiek & Partners, Inc. $10,000

If Prop. 90 were really just a taxpayer trap to benefit developers, lawyers and government contractors then why would the biggest developers, lawyers and government contractors all be dedicating thousands of dollars to ensure its defeat?

That's because Prop 90 contains one little clause that is unrelated to eminent domain; it says that any governmental action that reduces the value of property shall be compensated (see Section 3, #8 of the text of Prop 90 in your voter pamphlet). The language is poorly or vaguely worded which means there will be a ton of lawsuits if it passes. But make no mistake -- it surely will be interpreted so that cities will be afraid to downzone or preserve historic property, the Coastal Commission will be afraid to cut a big hotel down in size, and Fish and Game will be reluctant to protect endangered species, as a few examples.

What is unclear is how the initiative can be both poorly worded and cleverly designed. It must be one or the other doesn’t it? Does Prop. 90 open the door to lawsuits? Some legal scholars say yes- overwhelmingly though they agree that Prop. 90 will provide environmental lawyers- not corporate lawyers with the legal edge as they will be able to block gigantic land development, building on wetlands or the coast and will now have additional tools available to them so as to stop unwanted building.

That's because they won't have the money to pay a landowner "damages" or to defend themselves in court when the onslaught of litigation begins. In Oregon, a similar measure has resulted in over $6 billion in claims against local and state government in two years (the proponents of 90 say their measure is different than Oregon's but they are lying -- they are very similar). Oh, and Prop 90 is an amendment to the California Constitution, so un-doing it would be very, very difficult.

While it is still unclear how much it would cost municipalities if they had to compensate land owners for regulatory takings one thing that is clear is that this avenue, which is often used by developers to take the land of small homeowners would be closed off to them. Developers would be forced to go through a normal bidding process for each piece of land they wished to purchase. They would have to abide by currently standing environmental regulations and would not be able to circumvent them as they have in the past.

The potential economic disruption to all levels of government in California and the hamstringing of environmental and natural resources protection programs has resulted in a coalition that has NEVER been seen in California and will NEVER be seen again. Imagine if the Chamber of Commerce, the Farm Bureau, the Building Industry Association, water companies, the Taxpayer's Association, the League of Women Voters, seniors, labor, environmental and conservation groups, teachers, firefighters, and energy utility companies all joined together to fight something. Well, that's the case with Prop 90.

The coalition is not all that unnatural. It is made up of those who want to take the land (Chamber of Commerce, Farm Bureau, Building Industry, Water Companies, etc.) and those who benefit from the higher revenues that the malls, shopping plazas and theme parks bring in (Seniors, Labor, Teachers, and Firefighters).

The unfortunate part about the current system is that the burden of tax benefits are not felt by those who they should be felt by. The small homeowner is kicked out from their house so that developers can build a massive structure on that property (usually for free) and will have to pay 0 taxes on. Meanwhile the homeowner has to find a new place, pay additional real estate fees, higher property taxes, etc.

Yet, unfortunately, most people still don't know what Prop 90 is about.

The danger is that if they have only a superficial understanding, they want to vote for it. But our polls show that once they hear about the "Trojan Horse" nature of the measure, they say they will vote no. I am asking you to vote no and to pass this request on to as many people as you can. Since we don't have a ton of money to spend on television advertising, and because there will be a blitz of ads for all the other propositions and candidates, we cannot let Prop 90 get lost in the shuffle.

The natural tendency is not for people to vote yes, it is for people to vote no. People can not have very little information and have enough knowledge to naturally vote yes.

Please help us defeat this huge threat to what we all care about -- clean air and water, good planning, affordable housing, coastal protection, and economic stability. Thanks.

Dear S. Shepard: I don't have time to completely rebut your rebuttal, but I will make just a couple of quick points. If this measure was just about "taking land from people and giving it to those who can make more money," you would not see the coalition that has risen up against it. We can read the measure and it IS dangerous (the proponents say we are exaggerating and using "scare tactics.") Minds far sharper than mind agree with a "no" position. Even McClintock's proposed Constitutional amendment (did not pass the Legislature) stuck to eminent domain reform and avoided the "damages" issue that drew the Sierra Club and others in.

The Farm Bureau does not "take land" and you avoid addressing why all the hundreds of other coalition members who don't "take land" are involved. And, why is the Sierra Club opposed, when we have no money to make on redevelopment? Are we that naive to go along with what the cities and contractors tell us to do?

The answer to your question about why developers/contractors who presumably would like Prop 90 to pass are giving money to defeat it, there is a good answer. Passage of 90 would likely mean a virual grinding to a halt of the development process, including general plan amendments and rezonings. Why would developers like that? They are making plenty of money today, being able to work through the system (which in California can be complex) quite nicely. Having 10 times more lawsuits will only benefit lawyers, not the Chamber, the farmers, the builders, the environmental community, or the average citizen. Hence, we call 90 the "Taxpayer Trap."

I saw this post on another website earlier this week, and I think it provides an interesting perspective on why Prop 90 is a good thing:

"...Which brings me to another false accusation about this measure - that the State would have to compensate private property owners for all the lost money they could have made if they had fully developed their land to its highest and best use. It is simply not true. The measure doesn't say that and no state has ever compensated people that way. In Oregon, property owners are paid compensation for their property based on its value absent the regulation that restricts future development. In other words, if you lifted the restriction and then sold the property "as is," its fair market value would be the amount of compensation. In California, if Prop. 90 passed it would be even more simple. If eminent domain is used to take any portion of your property or damage its value in any way, then – and only then - you must be fairly compensated for your actual loss. Oh, and by the way, your property can't be taken from you and used for a non-public purpose."

Is the woman who wrote this off-base?

Well I am a progressive AND a planner. This measure has made me do some searching within as well. Both Allayaud and Sheppard are right in their arguements. This measure will pretty much limit any future government regulation or land use revisions for fear of Prop 90 claims. For the exact same reason it will also grind the development process to a hold as well.

But as Sheppard mentioned, this proposition gives opposition to any project real tools to fight and win against any large unwanted proposal. In a state that is still subject to immense growth forces, this prop will more than likely stop most development straight in its tracks.

Let's look at that a little more. A loss of development and public projects such as roads (due to their increased costs) would inevitably result in large scale construction industry layoffs, a more hostile business climate and increased housing costs. Those factors would more than likely conspire to spur on domestic outmigration from this state as well as discouraging international migrants from settling here in the first place. Eventually population pressure within the state would begin to subside, though at a high economic cost.

Those costs definately explain big business's opposition to this measure. Sheppard's assessment of the other party's interest in defeating this measure likewise make sense as well. I had considered the same things when first reviewing this proposition.

But in the end, the need for practical planning and an orderly PROCESS (corrupt as it may be at times) outweigh the protection this measure affords to the "little guy" and pressure it will take off the environment. At the moment, a moratorium on development may just be what the doctor ordered in terms of development. But four or five years from now, will that still be the case. Might we infact need a large development after all? And what about our protection? We (the government) could still enforce existing endangered species protection act compliance. But what if we discover an additional species is endangered? Too bad for them not making the 2006 lisst. Plus as we all know, life changes. Today's existing plan for freeways may make no sense in the future; trains might instead. But changing the plans would be out of the question, given the number of potential Prop 90 claims that could result. I just don't think its a good idea to lock ourselves into current (but eventually) out of date plans. That's why I still intend to vote no on the proposition.

But in the event it passes I would encourage any activist group out there to utilize it early and often. Truthfully I'd also expect business groups to mount a vigorous lobbying effort to overturn these unwanted sections.

One more thing. Here is what could happen if 90 passes, and this is not a scare tactic (read the measure and you will see that the way it is written, this outcome is entirely feasible):

City lets a tall building be approved because they are afraid of downzoing (reducing height limit)due to Prop 90's Section 8 provision. Builder builds the building, thereby blocking million-dollar views of neighbors of building. Neighbors sue city for "damages" as the city's "action" damaged their property value. Lawyers agree this is definitely possible if 90 passes.

Another case: county afraid to downzone rural property at end of road because of Prop 90. Without no Prop 90, due to water shortage, drainage issues, etc, they WOULD have downzoned this property that got zoned 25 years ago. Builder subdivides and starts 1,000 new homes. Neighbors on road TO this new subdivisoin sue the county because the new subdivison significantly damages their property values.

Prop 90 is a hornet's nest waiting to be hit by a stick on November 7th. Hopefully the voters won't be fooled by Howie Rich's play in California.

I agree this is a hornet's nest and no jurisdiction would downzone under those circumstances you described above. What I cannot see happening is a jurisdiction approving the development either (unless it is strictly ministerial in nature). Usually prospective developments must go through a permitting process before approval, during which local governments permit certain uses either because they are allowed conditionally OR choosing to waive the existing requirements and rezone. Relatively few projects are designed EXACTLY to meet what is allowed for under the existing rules. Granted, if a craftily designed project that took advantage of 1960s era zoning were proposed, i'd agree that it would be awfully hard to deny it. But thanks to most plans being semi-out of date now and changing business and development patterns most projects are going to require regulatory changes to go forward. And if 90 passes, I still would be hard-pressed to see how an agency would go along with the development if it meant potential payouts to the opponents. And as time goes on, plans become more out of date meaning fewer projects get approved or more backwards-looking ones get designed.

This prop is most definately evil. I just dont think it is going to be carte blanche for developers.

I personally know a few SMALL business owners who are having their businesses taken away from them for large developers to build a large MIXED USE (commercial / residential use) property.

The current property is COMMERCIAL... so the city is not only forcing them to sell at a loss but also they are making changing their property zoning from (commercial to mixed use) and selling it to a private developer for large profits.

I also have friends who had their homes taken from them to build mega-malls.

How would you feel if your small home/business is taken away from you and given to Home Depot and Food for Less?

How can prop 90 be evil if it restricts the goverment from taking a small business to create a mega-mall?

Sorry forgot to add a line.

Vote YES on Prop 90!

Alex
Sierra Club California long-standing member

In Cotati, California an elderly organic apple farmer was told his 20 acre property had tiger salamanders. A planning commissioner with her environmental impact reporting company helped slander his property. That planning commissioner has built 40 "low income" town houses @ $500,000 each and Lowe's and a big asphalt parking lot is there. There are plans for 40 more townhouses and a business park and strip mall. The commissioner is building her childless self a multi million dollar mansion and driving around in a brand new convertible Porsche. He is homeless and bankrupt. One would think that she would have given him one of those townhouses to live in. No. Evil does what evil wants with the government drooling behind because it is so HARD UP for cash from slandered and stolen property.

Too many people were fooled by the election mailers on the NO on 90 campaign. Developers & investors supported it. It implied Howie Rich was some evil rich person who gave millions of his own money to fight eminent domain abuse and they failed to mention the United Nations. Makes me wonder, how many land developers and how much money did the Sierra Club collect to show up at planning commission meetings around the state to promote this grand theft? What prostitutes! I don't see the Sierra Club helping out a person made homeless and bankrupt after the government develops so called endangered species, open space, biotic habitat & riparian corridor land! We need an Iranian theft law in this country or some good old fashioned anarchy!

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