“Son” of Prop 90--Right-Wing Extremists Are Back to Gather Signatures

In the last election, opponents of Prop 90 successfully argued that it would throw out any new land-use or zoning regulations that prevented real estate developers from making as much money as they wanted. So the Jarvis Association put in some language in their initiative that sounds like it won’t apply to such protections. But by doing so it creates some extra hurdles for government to prove that their actions are constitutional – and would allow right-wing judges to throw out any land use regulations that they don’t like.

The Jarvis Initiative says that its new definition for “damages” would not apply to land-use, planning, zoning or use restrictions – if they “substantially advance a legitimate government interest.” But current law presumes that land use regulations are rationally related to a state interest, and property owners who challenge them have the burden to prove that it is not. While it sounds like the Jarvis Initiative is less extreme than Prop 90, it would actually force government to prove how each and every one of its land-use regulations advance a substantial interest. Even a unanimous Supreme Court in Lingle v. Chevron (2005) agreed that such a standard is excessive.

The Jarvis Initiative then goes on to re-define a taking in a way that is obviously targeted at eliminating rent control. “Damaged property,” it writes, “also includes limiting the price a property owner may charge another person to purchase, occupy or use his or her property.” In other words, any effort to prevent real estate speculators and landlords from charging tenants whatever the market can bear could be found unconstitutional.

But the worst part of this initiative is that it is retroactive. Whereas Prop 90 was careful to limit its scope only to new laws or regulations, the Jarvis initiative says that “any action by a public agency” that was passed before the election and “results in continued damage to private property” will be “null and void.” Sensible protections that have been in place before the Jarvis initiative goes into effect could be considered a “continuing damage” to private property. Every protection that Californians currently take for granted are in jeopardy because of this provision.

Proponents argue that this measure is necessary to limit eminent domain, but even they concede in their “Statement of Findings” that they also want to get rid of rent control. And the Jarvis Initiative is hardly designed just to protect the little “mom-and-pop” homeowner who might lose their home to eminent domain. The initiative defines a property owner as “any person or entity” that possesses “any interest” in real property. The fact that it includes an “entity” (beyond a person) means that corporations who own property will be “protected” from government regulation as well.

Of course, we should expect nothing less from the Howard Jarvis Taxpayers Association. After all, Prop 13 never made a distinction between residential or commercial property. Its true beneficiary was not the elderly homeowner who enjoys a small property tax bill – but the large corporations who own downtown office buildings and continue to pay extremely low taxes. And the Jarvis Association has bitterly opposed any efforts to reform Prop 13 that would exempt commercial properties (i.e., “split-roll” taxes.)

Defeating Prop 90 was not enough. As infuriating as it is to re-fight the same battle all over again, concerned Californians must be vigilant in protecting our state. Our future depends on it. We cannot let the Howard Jarvis Taxpayers’ Association win this battle.

Paul Hogarth is the Managing Editor of Beyond Chron, an alternative online daily newspaper, with whose permission this article is republished.