12b Desk Item - Santa Clara Land Conservation InitiativeMEETING DATE:10/16/06
ITEM NO:!-2b
DESK ITEM
COUNCIL AGENDA REPORT
DATE:OCTOBER 16,2006
TO:MAYOR AND TOWN COUNCIL
FROM:DEBRA J.FIGONE,TOWN MANAGER
SUBJECT:CONSIDER ADOPTION OF A RESOLUTION SUPPORTING MEASURE A
(THE SANTA CLARA LAND CONSERVATIVE INITIATVE)
DISCUSSION:
Attached is a letter from the Silicon Valley Association of Realtors requesting that the Council
refrain from supporting Measure A,the Santa Clara Land Conservation Initiative.
Attachment:
Letter dated October 16,2006 from the Silicon Valley Association of Realtors
PREPARED BY:
N:\MGR\JHaruyama\StaffReports\DeskltemMeasureAdoc
C'A;~
ve prJd's Manager
Reviewed by:PSj Assistant Town Manager __Town Attorney
__Clerk Administrator __Finance __Community Development
Silicon Valley
Association of REALTORS <11
October 16,2006
Honorable Diane McNutt
Los Gatos Town COtillcil
t 10 East Main Street
Los Gatos,CA 95030
Dear Mayor McNutt and Coullcilmembers,
The Silicon Valley Association ofREALTORS®represents 4,000 real estate
professionals in Santa Clara and San Mateo Counties and would like to conunent on
Measure A~the proposed Santa Clara County land use initiative (10/16/06 agenda item
12b).We respectfully ask that the Council refrain from endorsing this initiative.Open
space is an important component of the quality of life for any community.There are
mechanisms for encouragitlg the appropriate preservation of lU1incorpotated county lands
without significantly impacting the rights of the people who own the property or
endangering the economic vitality of these areas.The proposed initiative,which you arc
considering for endorsement~is not the most appropriate or effective way to create open
space and may have many unintended consequences that can,and will cause harm to
unincorporated Santa Clara County.
Before making any decision on an initiative,which will cause dranlatic changes to land
use policy,we ask you to consider some of the potential consequences that will arise as a
result.Attached to this letter is a fact sheet from NO on Measure A,a coalition of
farmers,ranchers,Realtors,and hillside property owners that highlights some of the
potential consequences of the passage of this initiative.Each of the points has been
researched and cited by land use attorneys with extensive experience in Santa Clara
County land use policy.Also inclLlded are the ballot arguments filed with the Registrar
of Voters in opposition to Measure A.
On ]Wle 20,the Santa Clara County Board ofSupetvisors certified the initiative for the
November 2006 baUot,but declined to seek a study on how it would impact the cotmty's
economy and taxpayers or all analysis of exposure to the county from litigation,should
the initiative become law.However,a 1l1emora11dum reviewing the issues,impact,and
implications of the initiative prepared by the County of Santa Clara Planning Office
found the initiative includes myriad complex changes and would have a significant
impact on current land use policies in some areas.FW1hermote~the memorandum
indicates certain sections could expose the county to Iiall almost continuing threat of
litigation"over interpretation and implementation of the initiative.We would ask that
these potential consequences be taken into account as the COW1Ci!considers an
endorsement
19400 Sr'c:vcns Cr~ek Blvd ..Suire 100 •Cupertino.CA 95014
Phone:408.200.0100·Pax:408.200.0101 •www.silvar.org
~8l-~510/~OO'd 19E-l 91l9-8v6-059 SJO+les~!O uo!+e!~ossv ~81 leA uo~!I!S-~O~~
It is important to note that while Measure A is intended to downzone property and
increase restrictions on over 400,000 acres of unincorporated county land in the southern
and eastern parts of Santa Clara COtUlty,the economic impact of the initiative will be
borne by all county residents.In a memo to the Supervisors,County Counsel Ann Miller
Ravel outlined the consequences should Measure A and Proposition 90 pass on
November 7.Ms.Ravel \l\I1"ote,hIfProposition 90 and Measure A,the land use initiative,
both pass.there would likely be numerous claims for compensation filed by property
owners who contend that their property has been substantially damaged as a result of the
restriclions on property contained in Measure A."A copy of the County Counsel's
memo is also attached.
Than1<.:you for your attention to our concerns on this matter.I would request that you
leave the endorsement or rejection of Measure A in the hands of the voters.Should you
have any questions or would like further clarification of the potel1tial consequences of
this initiative,please feel free to contact ow'office.
~elY,
~eJ _
Paul Cardus
Government Affairs Director
Silicon Valley Association of Realtors
408-200-0100 Phone
408-200-0101 Fax
Z8l-=SIO/EOO'd 19E-l 91l9-8v6-0S9
NO ON MEASURE A
What is Measure A?
Measure A is an initiative placed on this November's ballot that claims to protect
open space.In actuality the initiative is poorly written and if passed Santa Clara
County's future would be jeopardized.
Why Measure A puts Santa Clara County's future at risk:
•It was written behind closed doors,without public input or review.Created by a
fonner Stanford University professor,it conveniently exempts one of the largest
private landowners in the county -Stanford University -permitting the university
to develop sensitive rura11ands without the same restrictions applied to other rural
properties.
•The initiative encourages premature annexation of rural lands into incorporated
cities,leading to more sprawl,and placing a potential strain on existing city
facilities and services.
Source:Measure A,Section 25
•Instead of providing n10re open space for public use,Measure A breaks open
spaces up into a jigsaw puzzle of hundreds of disconnected private parcels with
no public access.
Source Measure A,Section 25
•If Measure A is approved,its provisions will be locked into the COlUlty General
Plan.Correcting mistakes will be extremely difficult.A change as small as
providing for construction of a granny-flat on a single-family residence would
require an expel1sive countywide election.
Source;Measure A,Section 22
•Because Measure A restricts fanners'ability to construct processing and other
facilities,obtain financing for improvements,and adjust to changing mal'ket
conditions,it threatens their survival.And its restriction on a farmer's ability to
provide housing for adult children threatens businesses that depend on family
participatiolJ)the foundation of much of the county's agriculture.It could prohibit
fanners'markets in rural areas,and even block construction of wineries and
tasting rooms.
Source:Measure A,Sections 7(a).7(b),10(b)(2),II(h),12(6)(2)and 25
•Measure A threatens our local economy by blocking construction of the county)s
proposed wireless communications network,desigtled to provide high-speed
internet access everywhere ill the valley.This network is central to our county's
economic development strategy.
Z8,-,510/VOO'd 19£-1 91l9-8V6-059 5,:,l 90-9l-1JO
Source;Mea.~rlt A.Section 10(b)(19)
•Measure A restricts critical facilities like landfills and quarries in unincorporated
areas,greatly increasing transportation costs for consumers.Constraints on these
resources could cost our local economy billions of dollars and strangle economic
growth.
Source:MeasureA.Sections JO(h)(J2)and (19).r;md 12(b)(13)
•By reducing county revenues from property taxes and impact fees,the initiative
threatens funding for basic services like the Sheriff and fire protection.and limits
the county's ability to fund needed road and water ilnprovetnents.
SaurCfl.'Measure A,Sections 7(0),7(b),and 25
•There's a better way to protect our hillsides,ranchlands and sensitive habitats,
without risking our county's future.The county's tough new View Shed
Ordinance is scheduled for approval this fall, but it would be wiped out by
Measure A,replacing it with the initiative's poorly-written,wltested provisions.
Information:www.VoteNoOnMeasureA.com
Z8l-~5l0/500'd 19£-l 9Il9-8V6-059
AMGUMENT AGA..STMWUAf A ARGUMlNT "GAlN$1'MWURE A•canUnuod
RISKS OUR COUNTY's FU1'URE Inlormauonl ww.r.VotltllaDnAIecJt;ur,A,cllm
Wrlltan behind closed dOD1S,wllhDUI public hearings or
/I11vironmental tlWiew.l\teBSLIre It.I~nul\drAds at c:omplu l.sf D()IIlIld F.Gage
chatlgeelnto DIA'COUtlly'~GDnOral Plan.SUpl:t\'lSt'l"$11'1111 em.County
so pearly mlller111 cculdload III yoarll of &XllCIlIiiv&1!I\'AhIR9.WIth hJlllIllrio St1lith
bv!pllYUlJ U4bIe for maliOn~of dollars in dllma91 claimS.Santa Cllllll ClJUIlly Stl.allff
Corredlllll mlllal<e&will be clllfltlllL Chana-ilS sman 8$
IBI.!£My Datty
to/lMIdlng i granny.flal COIlld I1qll1rs an ftllpetlsivs $OlIDIYWld.Elcec1ltlVe Dlrldor.Sanlll Clala County FaI1ll BuIll:!U
election,(iii DllUJIas A.MtNea
Pt.dGol.!!lbn Valley T~ay.rs'As!lO;ll1jon
,.HRIlATlmll FARMING lsi Dlar.!\C8 O.Slone
Family 1a!m1ll8 !Iall,been stewardB 01 our agrieullll!lll hllJlllg.far Ct\liInmIn.Santa Clara County HIllllldo AG$llclafion
gWraliDlt'.MeQl;llrt A thrllaten;It\eIr sulVlval,reqUlpng
Ilinlm&lm pllCel&ot 4D •'80 ill;rG$!II'I hlllalde&_1ao II:tft on
ranchllllds.Slnca 401ll.of county ~ar.ltlai INn 1Uacres.W
~ould maka ~[mpvloSlble for IlInllOll '<l gal slal1td.e.¥Pand,
CCIlIWd JIIIlCGl:I:lng fac.iliIles,or ..'0 •."malk_b.
II COllklll\lll/l IllOh1blt IarmlilS'JnaI1<ols al11 block fXlI1$1I\lctlon 01
WlneJlllS and lISting rooms.That's why tIto COUIIIy ~1llTP BurellU
and 'grfw!lUl'Il cr~alliul\O!l.oPPClle "A:
IJHD!RMINIi$!lOaD PLANNING,PUBue OPEN SPACE AND
WlLDl,!Fl HABITAT
MeiJS1lfO A e~ouraglll ptematu'*IIMtxatlon 01 rural lands inlo
f1COlflOt/lled clllllS,leading to lI10ra .prewl,lI\OfO Iralfie en ,lleady
con;med IllBd&,and straln on dly feclll1les III'ICI SQlVIces.
11 bt'llalCS IIpln !lpIIC8lnlc hllndtedll 01 dlsconneclild prl\r.llo pan:elc
\\'1111 no pUbUc amISS,and !ragmenlll~'habllll~c,
HURTS OUR ECOHOUY
"-'UTe A could bloCk tllnclruC\llll'1 at lhl CrlWIly'1 wlfilM.
CI:lII1II1OOIca\loFlS ne\W~,des1gned '"ptv\'lde hl~ll-$peod IlIlllmGl
~IVllfYWIllll'tlln Ihfl valley,and woman the tg\lal cIlvld.!
II rubicl$critical racl11~l1r:Ike lantlnD&lll\d ~8$lI\
lIlillCQrpgr!lId are&$,lrIereaslng tl'llll.portalion *8 and
strangllllg ~DmIG \lIOwlh.
tHERE'S.A.BroER ALl'ERriAnvr:
Retldenlli,erNIronmentDlis\S,and county plaMel'll hl\ll iIlvesled
llloLlWlds or !loUt'll dtvelop/!lg lOUD"new ~~In saleguard
!'I'll,Ids&,viewsllids.VVllDlWIJ)'a 8IllI agrioullUrllllartd&,M"'Uta
"A"wipes cut II.otloll»,subslltullng a pDOllY,wr!lIll1\mlll$lJll)
that ~url1 meks \hIngs milch WCIIN.
~R-7«l'·l1e SC alot 1,,6 OQO·Pege Ilt
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REBUTTAL To ARGUMENT IN FAVOR OJI M!-'SURI!.A Rawn"..TO ARGUMENT IN FAVOR OF MeASURE A.
MeASURE A:A SOI.U'nON IN SSARCH OF A PROBLEM
tontlnlled
Pl'Qm~lelll cleilll Measure A Is nBOded III ",eel !he throB!III
DON'T RISK OUR FUTURe.VOTE "NOu Oft MEASURi,.
"\1I0iJS2/\dS at hause4 llIld ltldUS\Tlol and CIlmmerclill
developments."15/Plitt McHugh
Collllly suptNlsor
Bul allMltItIai and Indwlrlal doveloprnlln~are IIllledY 151 Oebra J.GllltClanllp",hlbiltd IIIl /IIIlsldes or tallchllllll1&In sanl.elora County,the
IlIl1QB CDVlfed by MearAlft A.Mftpltas Cauncllmllmb9r
~O&t SPrawl devslopmem iI'I Ihe ecun~tms ocamed wilhln ICI MldIaei N.M1UII
Ptesldant.SallIS Clara COUnty Call1emlln'J AslioclelhlnIllCOrparatedclUes.Mgsyrt!dpill aalbJlQ l&l §lOP Sblo,
'"Dllnnls WanMEASUREAENCOURAGalI.AWSUlTS,NOr COOO PLAMNlHG PlISldlln1,Cl1lneH-Alnllllcan cnalllber ot Commerce
PRlmOlerg Claim "..,11 wtlUld nllt vlolate any p4l1ll11n'o ptopli1,y III aeorgel:i.eugl!Uno
tlS!t'>'PtClSldRClt limI80 GlJglelmo Wlne.ry
un\lW1 under MllUure A,proplttty O'NIIIIlS 81lekl/lS even mlnDr
IllOQ"tfl~li to lItelr prtperty could be raquilld to UIB lawlldlS
Qf'flllid t¥JlIIlslve l:Uunlywldl cllmpglgnllio »protect'thlilr Iighls.
[Measure A.S.ClIorl22]
YEAQURi /l HURt'S FAMILY FARMING
Clritary III JHOII\0\8ns'deceplMi claimS.Meaaule A rl!lltlia;
construt1ion of aglIeultunll r::"Id cthlll'ralaled
facllll\e8.roqulrlngl1uly be Illlad lubsla 'I lor products gJ'(lWI\
\\tIhln llml!sd .feu dcslgna\ed by tile Inftjalilla.[SaGtiolll11Q.
12)
;thaf'ulI!!Jill"teal/a""Il'Id rancbes !lPD",H~uncIl!IIIllntng
\111 Iinlllldal VI.2billy agrioulluro,M.1l8Ilte A cllUld (Oleo
,a/lmlts 10'cloa or ttlocate.end acc.~.leu 01 farm lIIld
liltlClIlands.
MfABURe A CQUUI COST TAlPA VERi MILLIONS
In addition 10 mpoelng t81payllll 10 mUllOnS 0/~1I111ll1 In
IaWlIb,MwIlT£A .er;ollt mURolYi ml:ll't Itt ~Is\ing Slid
polonlilll propenv laX reYllllve ,nd Impact fOllS.fA~
\JXpayelS to ClUlOst bet'lleen mdilced idle nfll~sol'VicN
IOld InIprovementli or /llghertaxeG.[Sedlo,.or 1Il1t5 9-161
PfH401-1ae SO s.llot TYfIt aoa •Page DO
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OSC3':OF THE COVNn'COUNSlill;
COuNTY OF SANTA CLARA
70 West HcdOin,s Street
9:h Floor,East Wing
Srrr,;Qse,California 95110-1770
(~08)299·5900
(408)292-'72.40 (FAX)
Ann Miller Ravel
COUNTY COUNSEL
Winifred Botba
Robert C.CampboU
Nancy 1.CIaJ'k
Laurie F.Faulkner
"~mAIiT COUl'iTY CO'tlNS.t:L
Oetobq 3,2006
professor Girard
}'~pj:For Land and N~ture
:::n ~F...ast Bayshore Road
~."::':~..:';o,CA 94303
Re:Analysis of:Proposition 90
De<U'"Professor Girard:
This letter is in r~onsE:to your letter to me dated September 27,2006 CQDCeming the
~'1a1ysis of PropOsition 90'prep3ted by this Office for the Board ofSupeMsors'Legislative:
C'.;.;r;mi~tee.You assert that the statement in that analysis concerning Measure A is wrong and
yo\.,ask that we correct what )'Ou perceive to be m:t error.
We have taken another look at the provisions ofProposition 90 and Measure A and
reviewed the statement in our analysis ofProposition 90.For the reasons set forth below,we
;;';;-nt1nult to believe the statement is accurate.
The stat.ement to which you refer is a briefparagr8ph in a 5 page analysis ofProl'osition
90 which would amend provisions ofthe california Constitution coneeming gOVG:i'21ment actio~
to acquire or regulata private property.A key part'of Proposition 90 would zequire that
~;:(wenim.eot a.ge'llC;es provide compensation to ownC1'S when private property is "damaged"as a
;':-::~J:;of government actions whioh restrict the use ofproperty.The statement was not intended.
","~c'z.ciC"'-ailed analysis of Measure A.The purpose ofthe pamgrnph as wen as tho paragraph
~:-'B'Ceai~.g it was to alert the Committcc to the potential scope and impact ofProposition 90 on
:-C:$Ltlatory and other actiOllS which may be taken by the Board,Specific mention was made
concerning the potential impact of Proposition 90 on Measure A,because.,if the measure passes,
h vriU have a significant impact on County.land usc policies and practices.It is appropriate for
~"'e Co.m.tnittee to be ;lW".u-e of the logal issues and questions concerning Proposition 90,
"::;ludittg the "interaction with Measure A,even though many of the answers are as yet uncertain.
ZSL-~SIO/SOO'd 19£-1 91L9-SV6-0S9 9Z:Z1 9D-9l-1JO
?:rofCS$Qr Girard
Rc:Analysis of Proposition 90
2Jc!c't;ler 3,2006
T~sge 2
The statement to which you object reads as follows:
If Proposition 90 and Measure A.the land use initiative,both pass,there would likely be
numerous claims for compensation filed by property owners who oontend that their
property has been substantially damaged as a result of the restrictions on property
cO'Jltaintd in Measure A.These oleims would have to be individually evalu.a.ted,and
~tentia1ly liti8ate~to determine whether Proposition 90 applies and,if it does,the
;O':u.p¢I1sation.,if any.to which the property owner is entitled.
Although tl1e statement did Dot conclude that Proposition 90·would apply or that
compe:osation would be required even if it did appJy,YQU believe that the statement is wrong
based on the language in Section:S of the mwure.You state in your letter;
Ifooth 90 and A pass,the provisions of ~by Se<::tiQO 5,Would not aRPb',wu1d not be
applicable.would not be operative,to the extent that they Were contrary to.incoosistent.
with,in any way,Proposition 90 (assuming 90's validity).And the Cou,ntywould "ot be
sgbie£t to atiy Ha~.By the way it is written.Measlite A cannot subject the County to
liability.The issue in every in.st.8nce is applicability ofthe measure,not validity.Ifit
would violate anyone's rights [Measure A)is not applicable.(Emphasi5 yours)
We disagree with your statement that "By the way it is written,Measw:e A cannQt subject
rJle County to liability".A careful reading of the lan~age ofProposition 90 and Measure A
;eads 'US to conclude that if application ofMeasure A to a particUlar parcel tesults in "'dam'age~'to
"::'c&~'Pared as defined under Proposition 90,Measure A WQuld still apply and payment of
~(;";:)r:n..~on to the property owner would be required by Proposition 90.
Subdivision (a)of Section 5 provides:,
Notwithstanding their literal terms,the pro~ons of the Initiative are not
~?!ieable to the el<tent cgurts d~!IDJline iliat if they were applied they would deprive aJ)y
;:-ersons ofrlghts or priviloges undcrthe United States or State constitutions or laws,
including "taking"property-Without requisite COlXlpensatiOn,or would be CODtr3:ty in any
respeot to the constitutions or law.These explicit limitations on applicability ofthe
'Initiati'\'e are to make certain that its provisions do not infringe legal rights or violate tho
law in any way,or subject the County to any legalliabiJity.(Emphasis added)
Se\;uon 5 requ.ires a d~tennination by the courts that a:ppli(;~tion ofMeasure A would be
contrary to law before the County would be relieved of the obligation to apply its provisions.
7hat means the Count)'woUld have to implement and apply Measure A mld could not make its
''''',':(:;:·~jXlaf.ion that Measure A did not c.pply to a parcel because of t1:Jc provisions of Section
~."\$Ii .zsu.1~many owners whose property is impacted by the County's implementation of
,·;-~':s!.!;-e .<1..or by any other regu~ation irnposed on the use of property by the COWltY,are likely
Z8l-=SlO/600'd 19E-l 9ll9-8V6-0S9 9Z:Zl 90-9l-lJO
?roZc:;~=,r Girard
Re:AnalySis ofProp<>sition 90
Octo~3,2006
'>-.o.ge ~
~o :file claims for compensation under Proposition 90,particularly since the measure provides
that property owoers aro not liable to the government for attorneys fees and costs in any such
:;.:~iC'n-The County would have to apply Measute A to every affected parcel~and would have to
de-w until a court determines under Section 5 that the mea.su;e need not be applied.
Further,as explained below"it is OUf vi~that when analyzed with respoc:t to the
:;r0visi'Xis of Proposition 90,the oourts will not find that implementation of Measure A "would
:.'~-F;"":anypetSons of rights or privileges under the United States or State constifutions or laws,
';"!cl1JObg 'takint property without requisite compensation.or would 'be contrary in any respect
1.,:>':he constitutions or law",
mposition 90 does not prohibit land ase regulation 'by govett.Lment agencies,ineluding
reguJation.ofthe type provided for in Measure A.Rather,Proposition 90 imposes,on a
prospective basis.a constitutional requirement that a propeny owner be compensated if the
~17oation of a.govenuncnt regulation results in damage to that propertY,B~'Use owners
Whose property is damaged by implementation of Measure A wou1d receive the compensation to
wh:lch the law entitled thern~the application ofMcasure A WQuld not deprive anypropettyowner
of m"y rights Of privileges under,nor would it be contrarY tot either the Unityd States or
C;;-J:lfonlia CQDStitutiOns.
Very truly yours.
ANN MU.-LER RAVEL
CQunty Counsel
Board of Supervisors
Peter Kutras. Jr.,County Executive
Jane Declccr,Deputy County Executive
ZSl-~5l0/0l0'd 19E-1 9ll9-SV6-059 9Z:Zl 90-9l-1JO
OFYICI?O.i TilE COUNTY COUNSJ:;L
COUNTY OF SANTA CLARA
70 Wcst Hedding Street
9th Floor,East Wing
San JOSC,California 95 110-1770
(408)299·5900
(4<l8)292-7240 (FAX)
Ann Miller Ravel
COtlNTY C()'(JNS~L
Winifred Botba
Robert C.Catnpbell
Nancy J.Clark
Laurie F.Faulkner
.AS.~IS1"A.N1'COVN"l'Y COlJN5F.J.
TO:
FROM:
RE:
DATE:
MEMQRANDUM
Superviso!'Liz Kniss,Chairperson
Supervisor James T.Beall,Jr.,Vice-Chair
Legislative COlumittee
Peter Kut1'as,Jr.;County Executive
~l~c~unty Counsel J)
Robert C.Campbell;Assistant County Counsel .~
Analysis of Proposition 90
September 5,2006
The purpose of this memo is to provide the Legislative Committee with an anaLysis of
Proposition 90 which has qualified for the November ballot.Tbis lnitiative is also reforred to as
the uAndersonlnitiative"and "The Protect Our Homes Act",
Proposition 90 would ametlCi the California Constitution to prohibit the taking ofprivate
property for private US(}.The proponents of Proposition 90 were no doubt motivated.at least in
part.by the decision of the United States Supreme Court in Keio v.City ojNew London (2005)
125 S.Ct.2655,which upheld the authority oflocal government to use eminent dollUlin for
private development.However,this proposition goes beyond just restricting the use of emine1\t
domain.This measur.e would also require governm.ent agencies to provide compensation when
private property is "damaged"as a result of government actions which restrict the use of the
property.such as land loISe,environmental,building and traffic regulations.Government
agencies are generally not required under current law to pay such compensation.
Because of the vague and ambiguous Language ofthe proposition,the specific impact on
govemment agencies and this COUl'lty oannot be measured.However,the fiscal attd policy
impacts could be significallt.ReguLatory actions by government agencies could lead to
compensable damages even though the action reflects sound public policy.
Because key prQvisiollS and terms ofthe initiative arc ambiguous 01'not defined,should
the measure pass,there will tikelybc a significant amount of Htigation by opponents of the
Z8l-~SlO/llO'd 19£-!9ll9-m-OS9 9Z:Zl 9D-9l-!JO
Memo to Legislative Commit1ee
Re:Analysis of Propositi on 90
Date:September 5,2006
Page 2
l'ne<l.surc including property ownerS affected by tho restrictions.It will be the courts that will
ultimately determh\c the scope,application and constitutionality of the provisions of the
proposition.
SUMMARY OF KEY PROVISIONS OF PROPOSITiON 90
Probibits tho uso of eminent domain unless the properlY taken will be owned and
occupied by a govoInmental agency and the property used only for a stated public
use.
•Specifically prohibits the taking of private property for private use.
•Provides that unpublished emjn~nt domain J'ndicial opinions or orders shall be
nullliIld void.
•Requires that the "value"of taken or damaged property shall be the highest and
best usc.
•Defines '~ust cotnpensation"to be "that sun)of money necessary to place the
property owner in the same position monetarily.without any governmental
offsets,as if tho property had never been taken."
•"Damage"to private property includes government actions that result in
substantial economic loss to pl'ivate property.
• A property owner shall not be lia.ble to the govelmnent for attorney fees or costs
in :.ti"ly eminent domain action.
•Govemment powers to take or damage property under a declared state of
emergency is Dot restricted by the proposition.
•Condemnation powers may be used 10 abate nuisances such as bligh~obscenity,
pomography,hazardous substances or environmental conditions,
•The provisions ofPropositioll 90 are to be applied prospectively and shall apply
to any eminent domain proceeding that is not yet final.No law,rule ottegulation
in effect on the date of enactment of tho proposition shall be subject to its
provisions.
DISCUSSION
Eminent Domain:
In direct response to the Kelo decision,Proposition 90 would prohibit tile taking or '
damagitlg ofprivate property for private use.It roust be for a "stated"public use and then used
only for that use.It also ddlncs "public use"as more narrow than a 4'public purpose"and public
use does not include takings expected to result in a transfer ofpropcrty to private oW11ership for
the purpose of economic developmel1t or tax revenue 01'1haucemcllts.
Proposition 90 docs not prohibit a government agency from taking private property for
ZSl-=5l0/Zl0'd lSE-l SllS-SV6-05S lZ:Zl SO-Sl-lJO
Memo to LegIslative Committee
Re:Analysis ofPropositio1190
Date:September 5,2006
Page 3
uses which are clearly public such as building roads,schools,parks and other govcrnment~
owned public facilities.However,if the value of property adjacent to the taking is "damaged"
under the new provisions of the proposition,those owners may be entitled to compensation.See
the discussion on damages,below.
Private property can also be taken to abate a 1111isance,including blight,but only as to
specific conditions on specific parcels.A goverrunent agency could not take all ofthc parcels in
an area.for example for redevelopment purposes,unless it could show that each parcel was
blighted.
Although "public usc"is generally defined,it is not olearly defined.The proposition
does not prohibit the taking ofpropcl1ty for the transfer from one private party to another if the
transfer results from a government arrangemont whereby the private party perfonns a pUblic USG.
'fherc willlikcly be much litigation over the question of the definition of "public use".
The proposition provides that ··unpublished eminent domain judicial opinions or orders
shall be null and void".The effect ofthat provisiol'l is unclear.Does it refer only to opinions
and orders issued before the effective date ofthe proposition?If it also applies prospectively,it
could mean that only eminent domain decisions tllat receive a published oourt of appeal decision
will be effective since superior coutt decisions are not published.A1~o>if it applies to past
decisions ,that mAy call into question the validity of those decisions and orders.This provision,
too,will1ikely need the courts to ultimately detennino its meaning.
Yltluation ofPropetty and Just Compensation
Proposition 90 woulct significantly change the way in WhlCh the value ofproperty and the
amowlt of compensation due properly owners is calculated.Current la.w generally requires that
n property owner be reimbursed at the "fair market value"of the property,
Under Proposition 90,property is to be valued at the "highest and best use"without
regard to governmental offsets.Cun-ently.in determining the value ofthe properLy,required
dcdicatiol'l ofproperty for zoning purposes is taken into a<::count and often reduces the value of
the properly for eminent domain purposes.If the property is to be used for government
proprietary purposes,thon It shall be valued at the use to which the government will put the
property if that is a higher value cvel1 if that is not a use to which tbe private owner could have
Pl,lt the property.Both ofthose requirements will increase the amount a property owner would
be compensated.
Once again,though,the language in these provisions is ambiguous and certain tenns
unclear.This will make it even more difficult than the ClUTent procedures for detennining the
amount of compensation due.
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Memo to Legislative Committee
Re:.Analysis of Proposition 90
Date:September 5,2006
Page 4
'TIaIIl@ge"and the Impact on Regulatory Takings
Perhaps tbe most significant prov ;siol1 ofPropositioD 90 in texms onts impact 011 the
County is the extension oftbe right to compensation for damage to property by "tegulatory
takings".Under current law,there generally is no right to compensation as a result of restriction
on the use of property through land use or other regulatory action unless the owner is deprived of
virtually all beneficial use of the property.
Under Proposition 90~damage to private property includes "government actions that
result in substantial economic loss to private property".The measure does not define substantial.
It includes as e:xamples of government actions''the downsizing ofprivate property,the
elimination of any access to private property~and limitations on the use of private air space".
This is not an exclusive list."Qovomment action"is defined as "any statute,charter provision,
ordinance,resolution,law rule or regulation".
This provision is extremely broad in its potential impact.It clearly would apply to land
use and envhunmental regulations.The Legislative ATJa1yst has also stated that it could apply to
actions regulating or affecting such things as employment conditions,apartment prices~
endangered species.and historical preservation.
If Proposition 90 and Measure A~the land use initiative,both pass,lhere wo\tld likely be
munerous claims for compensation fUod by property owners who OOlltend that their property has
been substantially damaged as 'a result of the restrictions OD property contained in Measure A.
These claims would have to be individually evaluated,and potentially litigated,to determine
whether Proposition 90 applies and.if it docs.the compensation,if any.to which the property
owner is entitled.
Attorneys Fees
The proposition provides lhat a property owner shall not be liable to the govenunent for
attorneys fees or costs in any eminent domain action.This could result in many meritless claims
bdng filed.as a property owner would have no concern about having to pay the government
agency's costs should he or she lose the case.
Impact on Current Laws and Regulation'i
The Statement of Purpose itl tbe proposition provides:
This constitutional amendment shall apply prospectively.Its terms shall apply to any
eminent domain proceeding brought by a public agency not yet SUbject to a .final
adjudication.No statute,ehm1:er provision,ordinancc~resolulion,law,rule or regulation
Z8L-=5l0/~lO'd 19E-l 9lL9-8~6-059 LZ:Zl 90-9l-1JO
Memo LO Legislative Committol:1
Re:Analysis of Proposition 90
Da.te:September 5\2006
PageS
in effect on the dat~of enactment that results or has resulted Ul a suhstantialloss to the
value ofplivatc property shall be subject to the new provisions ...".
hl addition,the proposition provides that amendments to existing provisions continue to
be exempt if the amet1drnent serves to promote the original policy and does not significantly
broaden the scope of the provi si.on.TIus appears to say that existing laws,rules and regulations'
can still be applied without beuig subject to Proposition 90,including the new damage and
compensation provisions.The question of whether,subsequent amendments to existing
provisions promote the original policy aud doesn~t expand its scope is likely to be answered in
court on a case by case basis meaning uncertainty,dela.y and increased cost to the County.
JfMeasurc A passes in November,it will not be"in effect on the date of enactment\)of
Proposition 90.This is because Proposition 90 goes into effect the day after the election and
Measure A,by its terms,would become effective 10 days aftel'the BOat"d of Supervisors declar~s
the result of the vote.
CONCLUSION
Proposition 90 will make significant changes to the law of eminent domain and
regulatory takings.It will have a.signifioan~but unlmown,fiscal impact on the County and
other government agencies.Because of the potential fiscal impact,government agencies may
feci it necessatY to alter,or not go forward with,changes in law or regulation that affect the use
ofproporty even when such changes might roflect good public policy.
c:Jane Docker
Katie Brown
Michael Rattigan
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