Prop. 90's Downside: Glendale City Manager Laments Predictable Impacts of Overbroad Initiative

Last month in TPR Suneil Thomas of The Nature Conservancy voiced the environmental community's intense opposition to Prop 90. How do the California municipalities and governments react to Prop 90? What impacts might its passage have on cities like Glendale?

I certainly can't represent municipalities across California, but I can relate the implications of Proposition 90 from a municipal perspective. I think it is fair to say that Prop 90 applies to considerably more than just eminent domain issues. It certainly addresses eminent domain, but the issue that arose with the Kelo v. New London Supreme Court decision dealt with laws in New London, Connecticut, and that city's ability to take a single-family residence for economic development purpose.

In California we can't take a single-family residence for economic purposes; it has to be only for removing blight or other public purposes. So the Kelo decision didn't expand any authority in California, and it didn't increase the threat to homeowners. But the proponents are riding in on that red herring and using public concern to pursue a myriad of other efforts to limit government regulation and control in California. Prop 90 would do so in a way that will significantly constrain our ability to do good urban planning in communities across California, and it will make it much more expensive, if not impossible, for cities, counties, and governmental entities to assemble and acquire land with the objective of eliminating blight and encouraging development in blighted areas in California.

How would Prop 90's redefinition of "just compensation" affect the regulation of land use?

I am not the expert in this field; I can only relate what I understand. But, the current law on compensating owners of property acquired through eminent domain already establishes a process for valuing the property. That value generally is the highest and best use under the extant zoning.

Prop 90 establishes a higher value threshold for properties by stating that the property has to be valued at the prospective use for which the agency is going to put it. An example is if a municipality is assembling land for an airport and there is a potential for considerable revenue generated with the airport use, than somehow the property has to be valued at its revenue-producing value to the governmental agency. How you do that is unknown, but it leaves the door open to the argument that it somehow carries a higher value than one would be required to make under current law.

Because Prop 90 prohibits conveying property to a non-governmental owner, it virtually removes eminent domain as a tool to be used by redevelopment agencies. Redevelopment agencies do not use eminent domain a great deal, but when you are attempting to encourage a developer to invest in an area that may be blighted, you have to have some way to assure the developer that if they invest their time, money, designs, and land-use entitlement process in assembling land, that you have to have the ability to assemble a site for them.

That is where eminent domain comes in, but most agencies use it only as a last resort to assure developers that they can assemble a site, and then they use it only when they can't reach an agreement with the property owner about what is just compensation-then the courts decide. For redevelopment agencies, Prop 90 would take away the ability to utilize eminent domain for that purpose, because the redevelopment agency wouldn't continue to own, operate, and utilize a property that would be conveyed to a private developer, who would then put it back into good economic use.

The New York developer funding Prop 90 and similar initiatives across the country, Howard Rich, is attempting to duplicate the success of Measure 37 in Oregon, which effectively did away with the smart growth regulations that have made Oregon such a well planned state. What lessons from Oregon help the voters gauge the potential impacts of Prop 90?

I understand that the Oregon experience has been anything but successful. The last number I have is that they have over 2,200 claims and/or lawsuits and upwards of $5 billion in damages being claimed by these regulatory actions that property owners will claim have diminished their value. If we translate that to a state the size of California, you can multiply that a number of times in the amount of litigation that it is likely to generate and the claims that will be filed. Someone mentioned to me recently that this is another full-employment act for litigators.

The Prop 90 campaign has not yet generated much attention-especially in contrast to the 17 other ballot measures and host of candidates on this ballot. Given the extensive opposition to Prop 90, from the chambers of commerce, local governmental jurisdictions, environmentalists, editorial boards, and candidates in both political parties, why has the public heard so little about Prop 90?

We haven't heard much about it on the "No" front; we haven't heard anything about it on the "Yes" front. I think there has been some reticence by people who should be speaking out against it because it is carrying the mantle of the Kelo decision and eminent domain. That's why the group that is campaigning against 90 refers to it as a "taxpayer trap." Howard Rich has been ingenious at taking this concern that was generated by the media over a misunderstanding of the Kelo decision, and he has used it in a way that has had many people respond to the eminent domain of single-family homes issue, without knowing the other provisions of 90 that will have bad effects for California.

I don't know a great deal about the funding behind the scenes. The CRA and League of California Cities through the PAC has worked hard to raise funds, because the belief is that if we can educate the public as to what 90 really proposes, then people won't support it. But it has been pretty hard with the other campaigns that are vying for attention and money to get people who should be concerned about 90 to understand the need to raise resources for it.

I have yet to see or hear of anything in support of, except maybe an editorial here and there in some of the very conservative counties. But, we can't count on that because some resources will likely flow into the "Yes on 90" group and we will probably see something just prior to the election.

Is the November state ballot, with all these initiatives and bond measures, a blueprint for how not to govern our state?

My personal view is that it is not a way to establish good public policy, irrespective of the topic. As we're finding out on initiatives that cities have supported, like 1A two years ago, it takes millions of dollars to get your word out to the public, and even then you can only make sound bites.

Some of these issues are too complicated to rely on sound bites and the emotional reaction of people to issues. You see it in all the propositions on the ballot now, there is a "No" group; there is a "Yes" group. They all tell you in bits and pieces of limited information why it is good or bad, and these issues are all, I believe, way too complicated to put on a ballot and leave to media sound bites.

The public wants to understand them, but, frankly, doesn't have the ability to understand them, because there isn't enough information for them. I think we're seeing that reaction to initiatives by the public in some of the bond issues and some of the initiatives that have been approved in the past.

I think skepticism is developing among the voters, and they are beginning to react to these numerous initiatives in California every two years. I wish the Legislature would grapple with these issues in the way that good public policy ought to be developed. But we seem to be so polarized between the two parties that we are not able to resolve them in the Legislature, so groups resort to the initiative process.

Lastly, how you speak to colleagues and friends about Prop 90 and its consequences?

I think the easiest way to describe it is that it is not about single-family homes being taken for Wal-Marts or put in the hands of wealthy developers. It is about significantly limiting good government and tying the hands of local communities-little and big-to protect residents and maintain the quality of life in California. It is as simple as being able to acquire open space to preserve parks and regulate development in California so that it doesn't impose on residents. It's going to have a daunting effect if it passes.