This statewide initiative is currently being circulated by the Protect Our Homes Coalition. The group apparently has sufficient funding to gather the necessary signatures to place it on the November 2006 ballot. If it passes, it will have far more serious impacts on Napa County’s ability to enact new land use regulations than will Measure A.
Initiative Language
(comments in blue by George Bachich)
Section 1. STATEMENT OF FINDINGS
(a) The California Constitution provides that no person shall be deprived of property without due process of law and allows government to take or damage private property only for a public use and only after payment to the property owner of just compensation.
(b) Despite these constitutional protections, state and local governments have undermined private property rights through an excessive use of eminent domain power and the regulation of private property for purposes unrelated to public health and safety.
(c) Neither the federal nor the California courts have protected the full scope of private property rights found in the state constitution. The courts have allowed local governments to exercise eminent domain powers to advance private economic interests in the face of protests from affected homeowners and neighborhood groups. The courts have not required government to pay compensation to property owners when enacting statutes, charter provisions, ordinances, resolutions, laws, rules or regulations not related to public health and safety that reduce the value of private property.
(d) As currently structured, the judicial process in California available to property owners to pursue property rights claims is cumbersome and costly.
Section 2. STATEMENT OF PURPOSE
(a) The power of eminent domain available to government in California shall be limited to projects of public use. Examples of public use projects include, but are not limited to, road construction, the creation of public parks, the creation of public facilities, land-use planning, property zoning, and actions to preserve the public health and safety.
This brings regulatory takings under eminent domain and requires payment for regulatory takings just as for physical takings.
(b) Public use projects that the government assigns, contracts or otherwise arranges for private entities to perform shall retain the power of eminent domain. Examples of public use projects that private entities perform include, but are not limited to, the construction and operation of private toll roads and privately-owned prison facilities.
(c) Whenever government takes or damages private property for a public use, the owner of any affected property shall receive just compensation for the property taken or damaged. Just compensation shall be set at fair market value for property taken and diminution of fair market value for property damaged. Whenever a property owner and the government can not agree on fair compensation, the California courts shall provide through a jury trial a fair and timely process for the settlement of disputes.
Unlike Measure A, this initiative does not specifically allow waivers of the damaging restrictions or other compromise solutions. It just says the owner “shall receive just compensation”.
Unlike Measure A, which allows any court of competent jurisdiction to determine the compensation amount if agreement cannot be reached, (in most cases that would probably be just a judge), this statewide initiative requires a Superior Court jury.
(d) This constitutional amendment shall apply prospectively. Its terms shall apply to any eminent domain proceeding brought by a public agency not yet subject to a final adjudication. No statute, charter provision, ordinance, resolution, law, rule or regulation in effect on the date of enactment that results or has resulted in a substantial loss to the value of private property shall be subject to the new provisions of Section 19 of Article 1.
Like Measure A, this initiative exempts existing regulations.
Unlike Measure A, this initiative will be an amendment to the State Constitution, which will be much harder for voters to modify if any problems or deficiencies are discovered later.
(e) Therefore, the people of the state of California hereby enact “The Protect Our Homes Act.”
Section 3. AMENDMENT TO THE CALIFORNIA CONSTITUTION
Section 19 of Article I of the state constitution is amended to read:
SEC. 19. (a)(1) Private property may be taken or damaged only for a stated public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. Private property may not be taken or damaged for private use.(2) Property taken by eminent domain shall be owned and occupied by the condemnor, or another governmental agency utilizing the property for the stated public use by agreement with the condemnor, or may be leased to entities that are regulated by the Public Utilities Commission or any other entity that the government assigns, contracts or arranges with to perform a public use project. All property that is taken by eminent domain shall be used only for the stated public use.
(3) If any property taken through eminent domain after the effective date of this subdivision ceases to be used for the stated public use, the former owner of the property or a beneficiary or an heir, if a beneficiary or heir has been designated for this purpose, shall have the right to reacquire the property for the fair market value of the property before the property may be otherwisesold or transferred. Notwithstanding subdivision (a) of Section 2 of Article XIIIA, upon reacquisition the property shall be appraised by the assessor for purposes of property taxation at its base year value, with any authorized adjustments, as had been last determined in accordance with Article XIII A at the time the property was acquired by the condemnor.
(4) The Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount of just compensation.
(b) For purposes of applying this section:
1.“Public use” shall have a distinct and more narrow meaning than the term “public purpose;” its limiting effect prohibits takings expected to result in transfers to non-governmental owners on economic development or tax revenue enhancement grounds, or for any other actual uses that are not public in fact, even though these uses may serve otherwise legitimate public purposes. 2. Public use shall not include the direct or indirect transfer of any possessory interest in property taken in an eminent domain proceeding from one private party to another private party unless that transfer proceeds pursuant to a government assignment, contract or arrangement with a private entity whereby the private entity performs a public use project. In all eminent domain actions, the government shall have the burden to prove public use.
3. Unpublished eminent domain judicial opinions or orders shall be null and void.
4.
In all eminent domain actions, prior to the government’s occupancy, a property owner shall be given copies of all appraisals by the government and shall be entitled, at the property owner’s election, to a separate and distinct determination by a superior court jury, as to whether the taking is actually for a public use.
Unlike Measure A, this initiative also puts new limits on eminent domain.
Unlike Measure A, this initiative requires the County to give the property owner copies of all government appraisals. This pretty much eliminates the opportunity for government to minimize its liabilities by playing its cards close to the vest or by handling its deliberations “behind closed doors”.
5. If a public use is determined, the taken or damaged property shall be valued at its highest and best use without considering any future dedication requirements imposed by the government. 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.
Unlike Measure A, this initiative requires valuations higher than current market value if the proposed “public use” is a higher or more valuable use than current zoning allows.
6. In all eminent domain actions, just compensation shall be defined as that sum of money necessary to place the property owner in the same position monetarily, without any governmental offsets, as if the property had never been taken. Just compensation shall include, but is not limited to, compounded interest and all reasonable costs and expenses actually incurred.
Unlike Measure A, this initiative requires reimbursement of all the property owner’s costs, such as appraisal fees, attorney fees, expert witness fees, court costs, loss of income, interest, rents, etc.
7. In all eminent domain actions, fair market value shall be defined as the highest price the property would bring on the open market.
8. 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.
Unlike Measure A, this initiative includes all government actions that result in substantial economic loss, not just “new land use restrictions enacted by the Board of Supervisors.”
9. A property owner shall not be liable to the government for attorney fees or costs in any eminent domain action.
10. For all provisions contained in this section, government shall be defined as the State of California, its political subdivisions, agencies, any public or private agent acting on their behalf, and any public or private entity that has the power of eminent domain.
Unlike Measure A (which applies only to new land use restrictions enacted by the Board of Supervisors), this initiative also applies to all the cities within the county, and to all agencies of the state, counties, and cities, apparently including redevelopment agencies, transportation districts, sewer districts, reclamation districts, flood districts, special assessment districts, regional governments (e.g. ABAG), LAFCOM, Coastal Commission, Regional Water Quality Control Board, Air Quality Management Districts, CDF, DFG, etc., etc., ad infinitum.
(c) Nothing in this section shall prohibit the California Public Utilities Commission from regulating public utility rates.
(d) Nothing in this section shall restrict administrative powers to take or damage private property under a declared state of emergency.
(e) Nothing in this section shall prohibit the use of condemnation powers to abate nuisances such as blight, obscenity, pornography, hazardous substances or environmental conditions provided those condemnations are limited to abatement of specific conditions on specific parcels.
Unlike Measure A, this initiative puts new limitations on the use of “blight” designations (i.e., under this initiative, blight must be parcel-specific)
Section 4. IMPLEMENTATION AND AMENDMENT
This section shall be self-executing. The Legislature may adopt laws to further the purposes of this section and aid in its implementation. No amendment to this section may be made except by a vote of the people pursuant to Article II or Article XVIII.
Section 5. SEVERABILITY
The provisions of this section are severable. If any provision of this section or its application is held invalid, that finding shall not affect other provisions or applications that can be given effect without the invalid provision or application.
Section 6. EFFECTIVE DATE
This section shall become effective on the day following the election pursuant to section 10(a) of Article II.
The provisions of this section shall apply immediately to any eminent domain proceeding by a public agency in which there has been no final adjudication.
Other than eminent domain powers, the provisions added to this section shall not apply to any statute, charter provision, ordinance, resolution, law, rule or regulation in effect on the date of enactment that results in substantial economic loss to private property. Any statute, charter provision, ordinance, resolution, law, rule or regulation in effect on the date of enactment that is amended after the date of enactment shall continue to be exempt from the provisions added to this section provided that the amendment both serves to promote the original policy of the statute, charter provision, ordinance, resolution, law, rule or regulation and does not significantly broaden the scope of application of the statute, charter provision, ordinance, resolution, law, rule or regulation being amended. The governmental entity making the amendment shall make a declaration contemporaneously with enactment of the amendment that the amendment promotes the original policy of the statute, charter provision, ordinance, resolution, law, rule or regulation and does not significantly broaden its scope of application. The question of whether an amendment significantly broadens the scope of application is subject to judicial review.
Like Measure A, this initiative exempts existing ordinances, and exempts renewals and modification of existing ordinances so long as the modification does not broaden the scope of the existing ordinance.
Unlike Measure A, this initiative specifically provides for judicial review of any government determination that the renewal does not broaden the scope.
Unlike Measure A, the provisions of this initiative cannot be sidestepped by getting the approval of Napa County voters.
If this initiative and Measure A both pass, Napa County will no longer be able to sidestep Measure A by simply getting approval of a majority of Napa County voters, because regardless of what Napa County voters approve, Napa County property owners will still be able to seek relief under this statewide initiative.
If this initiative and Measure A both pass, property owners could probably seek restitution under either law. In this case, Napa County might worry about double jeopardy, that is, settling with a property owner under Measure A only to have him sue later under the state law if he changes his mind. However, the "any compromise solution" provision of Measure A would allow the County to ask the property owner to agree to 1) waive application of the state law, and/or 2) indemnify the County against any award he might win under the state law, and/or 3) stipulate that due to the waiver of restrictions under Measure A, his property was not damaged, and thus not subject to the state law.
Naturally, any property owner preferring to get maximum dollars from the County (including recovery of appraisal costs, attorney fees, expert witness fees, court costs, etc.), could seek restitution under the state law, and take his claim to a Superior Court jury. However, few will do that if given the choice, because most property owners will prefer to retain their property rights by getting a waiver of the restriction or some other compromise solution under Measure A.
Measure A allows flexibility in settling claims without paying out taxpayer funds. It also allows property owners to avoid having to “sell” their property rights by accepting payment for the damage done by the new restrictions.
If both measures pass, Measure A will benefit both Napa County and property owners by providing convenient refuge from the much harsher state law.
Napa County (and other counties, too) might be wise to pass Measure A in June order to convince November voters that the problem has been solved and that the statewide initiative is not needed. Having a more moderate solution already in place might help prevent the statewide initiative from passing.
George Bachich