Commentary

Voters Can Act to ‘Save Our Homes’

This article appeared in the Orange County Register on June 28, 2006.

Californians worried about local governments abusing their powers of eminent domain can rejoice in the news that the Protect Our Homes Act has officially qualified to appear on this November’s ballot.

The Secretary of State’s office announced Tuesday that it had verified 683,712 of about 1 million signatures for the initiative, which would protect individuals and small-business owners from having their land seized and transferred to other private holders.

After the U.S. Supreme Court’s now-infamous decision a year ago in Kelo v. New London gave government bureaucrats the green light to seize private land – not just for “public use” as called for in the Constitution but for the benefit of other private interests such as Costco, Home Depot and other companies that promise greater tax benefits to the community – several California lawmakers proposed laws to address the misuse of eminent domain. Some of these bills would have provided strong and effective protections for property owners, but the Legislature smothered them in committee.

Other legislative proposals were designed simply to fool voters into thinking they were addressing the Kelo problem, while not actually doing anything substantial. The pending State Constitutional Amendment 24, for example, would prohibit the use of eminent domain to seize “owner-occupied residential property for private use.” But it is small businesses that are most at risk from eminent-domain seizures. Ahmad Mesdaq’s upscale San Diego cigar store, for example, which was demolished to make way for a hotel. Or John Ravelli’s Oakland tire shop, which was condemned to make way for a Sears tire shop.

From 1998 to 2003, California seized 223 properties for private development projects on the theory that the properties were “blighted,” a requirement for using eminent domain. Most of these were small businesses, churches, farms or other nonresidential properties.

The Protect Our Homes Act looks after both residential and small-business property owners, and while it allows government to seize some blighted property, it doesn’t allow government to transfer the land to private companies. And by requiring that each condemned property actually be blighted, it puts an end to the government’s current trick of seizing nonblighted parcels located in a blighted area.

Despite the overwhelming number of signatures the initiative has received, powerful players are resisting it. Some environmental groups are suggesting that the initiative’s language would bar government from acting to prevent pollution. The initiative, however, would only require government to compensate property owners for losses incurred by regulations that don’t protect the public, and, even then, only when those regulations caused owners to suffer substantial losses. Laws against nuisances or pollution would be unaffected by the initiative.

And if bureaucrats believe that more-intrusive environmental regulations are necessary, they can keep those regulations in place – so long as they pay people for taking away the value of their land.

Resistance to the initiative has come from other surprising quarters. Some conservative groups have said they want to stop at protecting owner-occupied residences. Others, including Gov. Arnold Schwarzenegger, have remained curiously silent about the abuses of eminent domain. Perhaps the governor is concerned that the initiative might obstruct his big development plans for the state.

Well, if those plans include taking away homes and businesses that people have worked hard for and transferring their property to private interests, then it’s true that the measure would stand in the way.

This conflict is disconcerting because eminent-domain abuse is not a partisan issue. Rank-and-file members of both parties oppose the government’s seizure of homes and businesses for transfer to private parties. In April, conservative Republican state Sen. Tom McClintock and liberal Democratic Rep. Maxine Waters shared the stage at an event in Burbank to denounce these land grabs.

But other political leaders seem not to have gotten the message that Californians are tired of eminent-domain abuse. In November, these leaders might learn the hard way just how tired the people are.

Timothy Sandefur is a staff attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America.