September 19, 2006 - From the September, 2006 issue

Environmental Community Joins Chorus Decrying Prop 90's Potential to Cripple Quality of Life Laws

Prop 90, the purported anti-eminent domain measure, has caused one of the broadest coalitions in California history to form in opposition. While Prop 90 naturally concerns leaders in local government and redevelopment, it has also garnered a vehement response from the environmental community. TPR spoke with Suneil Thomas, Director of California Land Use Policy at The Nature Conservancy, about how Prop 90 would damage California.


Suneil Thomas

Why is the Nature Conservancy, in addition to so many other environmental organizations and civic leaders, opposing Prop 90?

The main issue behind Prop 90 is, purportedly, eminent domain reform, which is a very compelling issue among many people and an issue that the Nature Conservancy encourages the state of California to take a careful look at. Unfortunately, Prop 90 is very misleading. Its eminent domain reform provisions are not only very poorly drafted but recklessly go well beyond eminent domain reform.

Prop 90 attacks the basic power of local entities to regulate themselves. It strips the California constitution of the general welfare provision of police power. Normally jurisdictions have the power to regulate for health, safety, and general welfare. Prop 90, in a dangerous and haphazard way, strips the general welfare portion. Almost all of our quality-of-life regulations are justified by that general welfare provision.

If you have to justify every law based on just public health and safety, you'd have a hard time passing any of the laws that make California the great state it is today-whether or not those are smart growth land-use laws, which the Nature Conservancy is obviously concerned with. For example, there is no way oil drilling could have been stopped on the more environmentally sensitive and pristine portions of the California coast, and the California Coastal Act would have been too cost-prohibitive to enact. Also, future conservation efforts on our coast will be very difficult if 90 passes.

It is very important for me to stress that TNC is a conservative environmental group. We believe in property rights, and we believe in market-based approaches to solving environmental problems that involve land deals with willing buyers and sellers at fair market prices. We're a big land-owner as well, which sets us apart from most environmental groups and makes us very sensitive to land-owner rights issues.

All of this aside, we all need a rational, reasonable economic and environmental policy framework within which to do business in California. We are getting closer and closer to having that now. We've been working at it for over 50 years, and even with its flaws, it's still a framework that both environmentalists and developers generally understand, and we've been working hard together to reach innovative solutions for California's extreme population growth demands.

Prop 90 would throw all this work out the window. It would turn planning decisions away from local entities and the legislature, and into the courts. Judges would be deciding what California can and cannot do to plan for its future. And that's not how smart public policy is handled. The Nature Conservancy thought very carefully about Prop 90 and decided that this is such a danger to California that we had to get involved.

What is your analysis of Prop 90's provisions for paying property owners for any prospective economic losses from "any" government action? What impact would it have on environmental regulations and land conservation agreements?

First, Prop 90 refers to any property, not just real property. That's yet another example of how poorly it's drafted and, if possible, it will have to be limited through litigation. But even if it was limited to real property, it means that any government action that causes "substantial economic loss" to someone's property makes that owner eligible for compensation.

There's a valid point to that; regulations shouldn't be imposed upon land owners with no concern for what might happen to the land owner's property values. And that concept is dealt with in an established line of case law; it's called regulatory takings. Again, you might have problems with how certain cases have been decided, but it's a well established line of case law that people understand, and language from that line of case law should be the basis for any responsible reform.

Prop 90 turns that line of case law on its ear, in a really poorly drafted way. For example, what does "substantial economic loss mean"? No one knows, so it will have to be answered through costly litigation. "Government action" is also very broadly defined and could include not only the approval of your project, if you want to develop your property, but it could refer to the approval of a neighboring project.

Some developers might have a short-sighted desire to support Prop 90 because they think that it would be easy for them to get a development approved, but if they had a development approved, a neighboring land owner could sue on the grounds that the new development de-values their property. It creates an unpredictable litigation stream. It's the same problem some people have with claimed abuses of CEQA; Prop 90 could be used as a weapon to delay responsible smart-growth development that California needs.

More specifically on the land conservation front, it would make it very difficult to figure out what the development value of land would be. It will take a long time to figure out what the effects of Prop 90 will be on real estate prices and development. And that's a negative impact for everyone. It will slow down transactions on both the environmental/land conservation end and on the responsible development end, and it will be an unnecessary drain on the California economy in the meantime.

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Proponents of Prop 90 say that our side is overreacting, but all you have to do is look at the effects of Measure 37 in Oregon (similar measure to Prop 90's takings provisions) to see what the fallout of Prop 90's vague language will be. Over $4 billion in claims related to Measure 37 have been filed, and Oregon's courts and planning departments have been flooded with wildly speculative takings claims and development applications.

Organizations like the Nature Conservancy and the Trust for Public Land have been using conservation easements to preserve farmland, and using money from transferable development credits to preserve open space. Given these market-based tools, will Prop 90 help or hurt the effort to conserve open space?

Prop 90 will not accomplish any conservation goals. The only goal it could accomplish is that it could grind California's real estate economy to such a halt that perhaps there wouldn't be any responsible development at all.

But that is not the type of conservation the Nature Conservancy advocates. We want land use in California to be sustainable for our economy and environment. It is important to note what a legitimate threat Prop 90 is to responsible developers who are trying to revitalize urban areas, develop affordable housing, build vibrant communities, and improve transit corridors.

Prop 90 is just as much of a threat to the California economy as it is to the environment. That is why we have such a broad coalition of well-respected California economic, political, health, safety, and environmental interests opposing Prop 90.

On the other hand, Prop 90 is mainly funded by one man from out of state, Howie Rich. He's an extreme libertarian activist from New York, and he's funded this with his personal money, just as he has funded similar initiatives around the country.

The language for Prop 90 is not coming from within California. It's not well thought-out or well drafted. It comes from a small group of out-of-state interests like "Montanans in Action" and "Colorado at Its Best," who both refuse to identify their members and are wreaking havoc on California. These groups will not be affected by the irresponsible damage they are trying to inflict on our great state.

How will the 90 campaign play out between now and the November election? What are the challenges of opposing an initiative that appears so simple and relies on emotion rather than facts and analysis?

The "No on 90" campaign, unfortunately, is going to depend largely on paid advertising, which, during a crowded ballot year, is going to be very expensive. We're in an incredible fundraising crunch. Our goal is to raise money quickly, buy advertising early, and communicate a clear, simple message. The message of the proponents of Prop 90, although misleading, is very simple: "protect your home from eminent domain." That message is appealing, and we Californians need to take a careful look at it. But Prop 90 is nowhere near an appropriate answer.

To fight the deceptive aspects of Prop 90, we are sending the message about how debilitating Prop 90 will be for local governments, neighborhoods, and the ability of Californians to control our quality of life, and how the related litigation will drain the budgets of other important services, which is why we have the endorsement of groups like the California State Firefighters Association and the California Police Chiefs Association and a broad range of other endorsers. In short Prop 90 is a "taxpayer trap" and we need a lot of support and contributions to defeat it.

For more information about Prop 90 and the "No on Prop 90" campaign, please visit www.noprop90.org.

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