APRIL 25, 2008

A joint hearing of several Senate and Assembly committees took testimony on the two eminent domain initiatives on the June ballot. The statutorily required hearing was heavily stacked with invited witnesses who opposed Proposition 98, the Farm Bureau and Howard Jarvis Taxpayers Association sponsored initiative that would stop the government from taking private property for private projects and would add new eminent domain protection for farmers’ water rights. The sparsely attended hearing was held on Thursday, April 24, 2008, traditionally a get-away day for legislators to return to their districts.

Farm Bureau’s testimony focused on the fact that Prop. 98 will not affect the use of eminent domain for public facilities, public transportation, or public utilities, such as much needed water infrastructure. Despite the false claims by our opponents, Prop. 98 will not impact future water development in California. We noted that the Legislative Analyst’s Office (LAO) final analysis prepared for the June ballot voter pamphlet is devoid of even a mention of possible impact on water storage or conveyance infrastructure. While opponents pressed this issue vigorously with LAO, that office rejected it out of hand.

The committees’ invitation to provide testimony also included a request that Farm Bureau address the claim that Prop. 98 would bolster regulatory takings claims when zoning designations are changed or projects are altered or not allowed. We told the committees that for a land use regulation to be prohibited as a taking for “private use” under Prop. 98, the property owner would have to prove that the regulation was enacted “in order to” transfer an economic benefit (not a health, safety or welfare benefit) from the owner to private persons (not the public). Land use regulations that protect the environment or the health, safety or welfare of the public will not be impacted in any way by Prop. 98. We also reminded the committees that our opponents’ strained interpretation of Prop. 98 was even rejected by the courts in recent litigation challenging the Attorney General’s Summary of the initiative that will appear on the Ballot. Using the same logic described above, opponents argued that the Attorney General’s Summary should mention government liability for regulatory takings. The court, agreeing with our analysis, flatly rejected opponents’ interpretation of the initiative, and entered judgment against them. The Superior Court ruled that “Contrary to Preston’s interpretation, the measure would not prohibit every environmental or land use regulation merely because the regulation involves some transfer of economic benefits. . . The Court is not persuaded that this limitation necessarily would have a “far reaching” and “enormous” impact.”

Although it is doubtful that the hearing changed any legislators’ minds, several victims of eminent domain abuse provided powerful testimony during the time for public comment. Homeowners and small business owners from the communities of Vista and Baldwin Park in Southern California told how their lives have been shattered by the their city governments’ plan to take their property so favored developers can build a shopping mall or high-rise condominiums. One small business owner related that his property is being taken for a second time by the same redevelopment agency.

On the campaign front, Prop. 98 radio spots started running this week in the state’s five major markets. To hear the first radio ad simply click on this hyperlink: Listen to our new radio spot .