May 9, 2008

What Would Proposition 99 Do?

By What Would Proposition 99 Do?

by Timothy Sandefur

Many people are under the misimpression that Proposition 99—the ballot initiative supported by a coalition of government groups—would protect homes from seizure through eminent domain. The fact is that it would not, except perhaps in extremely rare circumstances.

Although the initiative declares that government would not be allowed to “acquir[e] by eminent domain an owner occupied residence for the purpose of conveying it to a private person,” another section undoes this protection for almost every conceivable case. It declares that “Subdivision (b) of this section does not apply when State or local government exercises the power of eminent domain for the purpose of acquiring private property for a public work or improvement.” And the definitions section states that

“Public work or improvement” means facilities or infrastructure for the delivery of public services such as education…parks, recreation…libraries…streets or highways, public transit…and private uses incidental to, or necessary for, the public work or improvement.

What this means is that a city could condemn land including owner-occupied homes, to construct a shopping center so long as it put a community center or a branch of the local library, in the shopping center. For example, the Victoria Gardens shopping complex in southern California includes a branch of the local library and a community center next to a multimillion dollar collection of stores. If a city decided to construct such a mall, and to seize owner-occupied homes to do so, Prop. 99 would not apply and the homeowners would not be protected. It would therefore be extremely easy for government officials to organize projects to avoid even the small protections provided by this initiative.

Of course, owner-occupied homes are not the typical victims of eminent domain, anyway. Usually, it’s small businesses that are targeted for seizure, since redevelopment projects take place in areas zoned for shopping centers and the like. Thus Proposition 99 would have little effect even aside from this large loophole. But even owner-occupied homes would receive very little protection from this proposal.

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