By David Bolling

If the California Property Owners and Farmland Protection Act sounds familiar, that’s because voters were led down a similar path just a year ago with Proposition 90, which sought to force government to pay property owners for any restrictive zoning.

That measure lost by a 47.7 to 52.3 percent margin, but not before putting state and local governments throughout California in a state of panic for fear it would have resulted in paralyzing lawsuits and catastrophic costs for any effort to govern the use of private land.

The new act, which for lack of any title shorter or more elegant is being referred to as CPOFPA, is sponsored by the Howard Jarvis Taxpayers Association, the California Farm Bureau Federation and the California Alliance to Protect Private Property Rights.

Backers of the measure, which would appear on the June 8 ballot if it qualifies, say it was written to address the abuse of private property rights by government use of eminent domain.
It specifically prohibits the taking of private property for a private use, and it removes any limits on the price a private owner may charge another person to purchase, occupy or use his or her real property. That provision applies to rents, and while it says that no one living in a currently rent-controlled residence can be deprived of rent control, it allows rents to be raised as soon as the occupant leaves.

A legal opinion provided by the League of California Cities argues that language in the measure would also prohibit water projects that condemn private land to provide water to other private interests, as virtually all California water projects currently do.

Critics of CPOFPA say it will incrementally eliminate rent control across the state and put all future water development projects at serious legal risk. Last week Sonoma Mayor Stanley Cohen appeared at a petition drive organized by the League of California Cities and put his name on a competing petition that is much more narrowly focused. That measure, the Homeowners Protection Act, would simply prohibit eminent domain of private property if the condemned property would then be transferred to a private developer.

Both measures follow the failure of the state Legislature to get a two-thirds vote for a constitutional amendment that would address the excessive use of eminent domain. Literature distributed by supporters of the Jarvis measure and posted on the Web site of Californians for Property Rights Protection, list three examples of the need for eminent domain reform. The first is the United States Supreme Court decision in Kelo v. City of New London, which held that the city of New London, Conn., could condemn a private home and give the land to a private developer to achieve urban renewal. That decision rocked property rights advocates across the nation and led to reform legislation in numerous states, including Oregon, which in 2004 passed a ballot measure requiring compensation for any restrictive zoning of private land.

Oregon then became a legal battlefield with 7,500 lawsuits filed over property rights, and that legal chaos led to a second initiative that passed this month and repealed much of the earlier measure.

The second case cited by CPOFPA proponents concerns an ill-conceived effort by the Yolo County Board of Supervisors to acquire a 17,000-acre ranch through eminent domain in order to protect its open space and water resources. That effort was ultimately abandoned after an outpouring of opposition, but it was seized on by property rights advocates as an example of the evils of eminent domain. Finally, the CPOFPA proponents point to Caltrans and its habit of condemning and buying private property for highway projects that never get built. The Orange County Register investigated the issue and discovered that Caltrans owns more than 12,000 acres of condemned land it hasn’t used, a third of it sitting empty for at least 30 years.

That said, most government analysts voicing public opinion on the subject are hard-pressed to come up with evidence of a prevailing problem. That’s one reason CPOFPA critics are calling it a “Trojan horse” to disguise efforts to end rent control in California. “For some people,” said Amy O’Gorman, regional public affairs director for the League of California Cities, “eminent domain is only a smoke screen to abolish rent control.”

The league-sponsored measure has until next week to turn in just under 700,000 valid signatures. If both measures qualify for the June ballot, it is likely that the non-redundant and non-duplicative provisions would prevail. It is also likely that if either or both prevail, further litigation may result. Stay tuned.

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