Protecting Property Rights in California

The Constitution of the State of California provides that "All people by nature are free and independent and have inalienable rights. Among these are enjoying and defending life and liberty acquiring possessing and protecting property . . . ." Property rights are a fundamental core American value.

The 5th Amendment to the U. S. Constitution as well as Article I Section 19 of the California Constitution prevents the government from taking private property for public use without the payment of just compensation. Unfortunately the courts have slowly eroded these protections. A lot of damage has been inflicted on this constitutional principle by the virtual elimination of the "public use" requirement. Historically government could only take private property for "public uses" such as roads parks fire stations and other government occupied buildings.

Over time the courts have changed the "public use" requirement into a "public purpose" requirement. The new "public purpose" requirement no longer required the government to use the property but simply to articulate some "public benefit" that will be achieved by taking the private property. This new "public benefit" test allows government to take property for any public benefit even if the property will not be used by government. Courts now allow the taking of private property in order to transfer that property to another private party so long as the government can state some public benefit including the "benefit" of generating more tax dollars.

The elimination of the "public use" requirement struck a nerve of the American people when the U.S. Supreme Court ruled in the case of Kelo v City of New London 125 S. Ct. 2655 (2005). In the Kelo case a family that had owned and occupied their house for over 100 years was forced out of their home so that the City of New London Connecticut could implement an economic development plan that would result in greater tax revenues for the city. If homeowners with such deep roots in their property can be evicted and their home demolished simply to increase tax revenues no citizen’s property rights are secure.

If there is any silver lining to the high court’s Kelo decision it was that the court acknowledged that states were free to provide more property rights protections than the minimum "floor" mandated by the federal constitution

The resulting firestorm after Kelo led property rights advocates throughout America to propose changes in state law. More enlightened officials in several states acted quickly to ratify what most had presumed to be the law in the first place: That is that government could only use the draconian power of eminent domain to take property for truly public uses.

Here in California the Legislature — while nibbling at the edges — has failed to provide meaningful protection. Although State Senator Tom McClintock and Assemblywoman Mimi Walters have introduced proposed constitutional amendments to provide enhanced protections these proposals have been stymied by pro-government legislators. Those who support the status quo are now backing Assembly Constitutional Amendment 8 by Hector De La Torre which has cosmetic appeal but provides no serious protection against the abuse of eminent domain to seize property. Sacramento Bee columnist Dan Walters described ACA 8 as "very limited and unfair" while the Orange County register called it "’Reform’ that’s worse than doing nothing."

During the last election cycle a variety of property rights advocates put Proposition 90 on the ballot. While Prop 90 would have prevented "Kelo takings" meaning that property could not be seized for the purpose of private use by someone else it also delved into the area of "regulatory" takings. Regulatory takings are government action — short of actually acquiring title to the property — which significantly reduce the value of property. It is a complex area of the law and Prop 90’s opponents were able to convince the voting public that Prop 90 went too far.

Despite a huge funding advantage and a well executed campaign opponents of Prop 90 barely squeaked out a victory in November of 2006. Subsequent polling suggests that Californians still want some protection against government from abusing their property rights. In other words the issue is far from dead.

A coalition of groups concerned with property rights came together shortly after Prop 90’s defeat including the California Farm Bureau Federation Howard Jarvis Taxpayers Association and The California Alliance to Protect Private Property Rights. The goal was to draft a property rights amendment to the California Constitution but to avoid some of the pitfalls encountered by other efforts. The California Property Owners & Farmland Protection Act (CPOFPA) reasserts our rights as citizens — protecting current and future property owners from unjust property seizures by local government under the auspices of a "public good."

Key provisions of the Act provide that:

– Private property cannot be taken under eminent domain for private use no exceptions (i.e. to build a retail mall auto mall or industrial park).

– Property can only be taken by eminent domain for public use (i.e. freeway construction parks schools).

– Property cannot be taken and used for the same purposes (i.e. residential housing property cannot be used for government housing).

– Government cannot determine the price at which property owners sell or lease their property. Implementation of this provision will be executed via "permanent vacancy decontrol" in areas where rent regulation/rent stabilization measures are currently enacted.

– Family farms and open space are protected from seizures by local government to use the land and natural resources for other purposes (such as housing developments).

– If a public agency abandons a public project the property must be offered for sale to the original owner at the original price and the property tax would be assessed at the value of the property when it was originally condemned.

– Property owners would be entitled to compensation for temporary business losses relocation expenses business reestablishment costs and other reasonable expenses.

The California Property Owners & Farmland Protection Act provides real property rights protection for all property owners. Government should not have the right to take private property and transfer that property to a developer to build a shopping mall or sports stadium. This Act prohibits that ever happening in California.

In sum the Act will provide all California property owners with enhanced protection against government overreaching by prohibiting the taking of property for a private not public use by prohibiting government from seizing property to be put to the same profitable use and by ensuring that property be free from restrictions relating to the sales or lease prices.

In all fairness if approved by the voters the Act would not break any new ground. It would merely restore the notion of property rights envisioned by those who crafted our federal and state constitutions.

Jon Coupal is President of the Howard Jarvis Taxpayers Association — California’s largest taxpayer organization — which is dedicated to the protection of Proposition 13 and promoting taxpayers’ rights.