Prop 90 at League of Cities

The so-called debate on Proposition 90 the other night at the Orange County League of Cities was uneventful and predictable. The evening was originally billed as a presentation on "Prop 90: the Taxpayer Trap," but vigilance from this blog and others pressured the League to include the other viewpoint. The "Yes on 90" side was ably represented by Assemblyman Ray Haynes. The "No" side was presented by John Shirey of the California Redevelopment Association.

Each side made a 15-minute opening, and then each responded to questions. Art Brown (Buena Park) waved the OCTA flag and lamented that a court made them pay market prices for land taken through eminent domain - but opined that it was proof that prop. 90 is unnecessary, since the courts used current law in making OCTA pay up ... interesting argument, reminds me of a serial killer leaving a note to "stop me before I kill again..."

Lance MacLean (Mission Viejo) suggested that expansion of the Toll Road(s) would be difficult under Prop 90 since the TCA would have to pay "highest and best use" value of the land, that of the more valuable use as a toll-road rather than cheaper open space. For the record, Prop 90 states: "In all eminent domain actions, fair market value shall be defined as the highest price the property would bring on the open market." What is unreasonable about the question is that private land cannot be used as a toll road UNLESS and UNTIL the government possesses it, so it could never be sold on the "open market" as a toll road. And it should be noted that Prop 90 does NOT prohibit the example - the measure still allows eminent domain for public works (roads, sewers, schools, parks). Mr. Haynes astutely argued that it will force government agencies to deal in true good faith with private property owners.

Much was debated about definitions of "private property," "substantial economic damage," and "highest and best use." The issue of the propriety of organizations such as the League of Cities - which is funded by payments from cities from public funds contributed by taxpayers - came up briefly but was predictably shouted down.

I want to correct one misstatement made by Mr. Shirey who said that Prop 90 does not contain the phrase "highest and best use." It most certainly DOES, in this passage: "...taken or damaged property shall be valued at its highest and best use... You may read the entire text of Prop 90 here ... hopefully Mr. Shirey will take the time to do the same before the next debate.

Kudos to the League for correcting their originally one-sided presentation. Kudos to Assemblyman Haynes for making the case for passage of 90 to an unreceptive audience. And MAD PROPS to the protestors outside the hall who came from as far as Los Angeles to show a presence for "yes on 90" (and a tsk-tsk to OC for not fielding more homegrown pickets). The breadth of the coalition was in evidence, with members of the League of Latin American Citizens (LULAC) demonstrating with OC property rights advocates Larry Gilbert, Al Pilger and others.

Comments

[Alex Brant-Zawadzki]

Mr. Leyes;

First off, welcome to the blog. Here's hoping you're a voice of reason.

Now to business - Lance MacLean's comment was perfectly reasonable. Here's why - I like to call it Section 19, Article I, subsection b, paragraph 5:"If private property is taken for any proprietary governmental purpose, then the property shall be valued at the use to which the government intends to put the property, if such use results in a higher value for the land taken."
This means that not ONLY will Rancho Mission Viejo have to be paid the value of the land w/ the toll road on it (something they could argue in court)... but if they have good lawyers they could even get a portion of the tolls.
And that's just the beginning.
In terms of frivolous lawsuits, Prop 90 makes the Americans with Disabilities act look like a birthday present.

[Debbie ONeill]

Any City that has redevlopment would be against prop 90. REDEVELOPMENT is another name for take peoples property and it's too bad. Where did the League City get two millions dollars to fight prop 90? Would that be tax payers money?

"and a tsk-tsk to OC for not fielding more homegrown pickets."

Uhm.....Maybe it's a bad idea and that is why it was hard to field the picketers?

[Critic]

Ray Haynes brought an army of straw men and was almost laugable in his attempts to answer questions about what the phrase "substantial economic damage" meant. He claimed that there was extensive case law but couldn't cite a case. Since you seem to support this, perhaps you can cite a case where this is defined.

The poison pill in Prop 90 is this open-ended clause that will effecitively make a ton of government actions open to litigation for causing damage to someone.

Except when taken to protect public health and safety, “damage” to private property includes government actions that result in substantial economic loss to private property. Examples of substantial economic loss include, but are not limited to, the down zoning of private property, the elimination of any access to private property, and limitations on the use of private air space. “Government action” shall mean any statute, charter provision, ordinance, resolution, law, rule or regulation.

Instead of letting decisions be made by local government officials elected by the people, government will be turned over to vulture attorneys and courts who will end up costing all taxpayers a fortune. Over 5 billion in claims have been filed in Oregon since they passed a similar measure.

The elected officials who oppose this are representing the interests of their constituents, unlike self-appointed activists like Larry Gilbert, who has consistently failed at the ballot box, but can't stop seeking the limelight.

[Mark Leyes]

"Critic" protests that Prop 90 won't let "...decisions be made by local government officials...", but that would only be decisions that affect private property with "substantial economic damage."

Maybe getting back to the government that "governs least" would, if fact, be best. And any real public work would have to be compensated for from the public purse - meaning that government officials will have to truly justify such projects to the taxpayers and/or voters.

Now, how can that be bad?

[Critic]

And that definition of substantial economic damage is what ? Senator Haynes said there was plenty of definition in existing case law, but couldn't cite a case.

This is a complete redefinition of governmental taking, not eminent domain reform. If the county approves a new development next to my house, and I claim "substantial economic loss" because of more traffic, noise, and loss of light, will this be litigated for years? If the value of my home goes down $10,000.00, is this a substantial economic damage? Will every developer have to buy off the local nimbys? Could this give nimby attorneys and liberal judges a whole new way of fighting progress? Will it send vulture attorneys to the mattresses to scope out loopholes in local zoning codes? Will every conditional use permit, update of zoning, or specific plan change be litigated?

Governments that govern best are ones that are most local, and make the hard decisions to reach compromises. They are accountable to voters every election cycle and at every Council meeting. Any law that creates an entirely new job opportunity for lawyers is one that sucks us all dry.