Proposition 98 Threatens All Californians—Not Just Renters

Because such regulations reduce the value of the regulated property and benefit surrounding property owners, many analysts believe they would be subject to challenge if Prop. 98 became law. Proponents say that’s not their intent but, unlike Oregon’s Measure 37, a similarly draconian initiative approved by Oregon voters, Prop. 98 doesn’t give local government the choice of paying for a reduction in value or waiving the regulation. It’s a flat-out prohibition that will lead to countless frivolous legal challenges.

The prohibition on transferring economic benefit could also block habitat restoration plans that benefit salmon fisherman at the expense of landowners or regulations to implement AB 32, the State’s global warming initiative. Businesses that balk at paying for new equipment to limit greenhouse gas emissions could, for example, challenge programs that provide incentives for new green businesses as an unconstitutional transfer of economic benefit.

Unlike Proposition 90, the previously unsuccessful attempt to use eminent domain abuse as a shield for attacking land use regulation, Prop. 98 does not exclude government actions to protect health and safety. This means that cities might be unable to limit the hours of operation of a troublesome bar or restrict locations where adult businesses can operate. Prop. 98 would allow government to use eminent domain to prevent or abate nuisances by taking over the property in question but specifically excludes the more traditional exercise of police power through regulation to prevent a property owner from using property in ways that are clearly harmful to other owners or to the community at large.

Prop. 98 also says that a public agency can’t use eminent domain to take property and then put it to the same use as that made by a private owner. Our read of the plain language is that this means, for example, that a public agency could not use eminent domain to take over a deteriorated housing development and turn it over to a nonprofit housing development corporation to return it to use as affordable housing. Instead, the property would have to become public housing owned by the municipality.

Prop. 98 supporters claim that their attorneys dispute this reading. Other legal analysts have concluded that the measure’s murky language is, at best, sufficiently confusing that it would leave public agencies open to countless challenges. Under traditional principles of statutory construction, courts must make every effort to achieve the intent of the legislation. Moreover, since the overarching purpose of the measure is to expand constitutional protections for private property owners, there is a substantial risk that courts will read ambiguous terms to favor the intended beneficiaries. Ultimately, it will be up to the courts decide and, regardless of the ultimate outcome, taxpayers will have to foot the bill to litigate countless lawsuits, however frivolous they may be.

A broad coalition including the League of Women Voters, League of Conservation Voters, AARP, California Police Chiefs Association, Western Growers’ Association, the California Chamber of Commerce, and scores of other organizations and community leaders have lined up against Proposition 98 because it’s bad for California. Every Californian who believes that it’s important for our communities to be able to plan how they will grow while protecting community character and natural resources needs to join them and VOTE NO ON 98.

Vivian Kahn is an Oakland planning consultant who has written land use regulations and general plans for communities in California and other states. She teaches courses on land use planning, design review, and environmental review for UC extension programs at Berkeley, Davis and UCLA and co-authored two chapters on zoning for California Continuing Education of Bar’s new publication California Land Use Practice.