e-Bulletin: November Ballot Measure Would Prohibit Eminent Domain for “Private Use”

The eminent domain reform initiative sponsored by Anita Anderson has qualified for the November ballot. The measure is entitled “The Protect Our Homes Act” and proposes to amend the State Constitution. It would become effective immediately upon approval by a majority of voters.

The measure would drastically reform eminent domain and dramatically affect the ability of government at all levels to enact new laws, ordinances, and regulations.

The measure would prohibit eminent domain for “private use” but fails to define what it means by “private use.” It would give juries the right to determine whether an eminent domain action is for public use, which now is a question of law for judges.

The measure also would redefine just compensation and fair market value. These definitions are inconsistent with how they have been defined for over a century in California or throughout the country. Generally, these redefinitions will make it much more expensive to build schools, roads, levees, and other infrastructure.

The measure also would change the law for what are called “regulatory takings,” which involves claims for nonphysical takings of property. The measure would require payment of just compensation for any new law, rule, or regulation that results “in substantial economic loss to private property”. With the exception of health and safety, this requirement to pay damages would apply regardless of the need or justification for the new law.

This provision would apply to all levels of government, state to local, executive to legislative, with regard to all private property. This includes intangible business property and personal property, not just real property. This provision would also apply to criminal laws.

The scope of this “regulatory takings” provision is beyond any interpretation of regulatory takings by any court anywhere, anytime in the country. Matters not normally associated with eminent domain would be affected, including environmental laws, animal welfare laws, consumer protection laws if they result in “substantial economic loss to private property.” Land use regulations, general plans, zoning laws, would be subject to this provision, too. The litigation costs and the payment of any damages shall be borne by taxpayers.

If the measure becomes law, it is anticipated that current and future projects for schools, water, roads, power, flood control and other public projects will be more difficult, take longer, and cost more.

It is also anticipated that any new laws, rules, and other government actions will trigger expensive takings claims by affected property owners.

The measure appears to be inspired by the controversial U.S. Supreme Court Kelo case, a decision that expressly stated that current California law did not apply to the situation in that case. The petition drive for the initiative was funded by an individual in New York.