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12b Desk Item - Santa Clara Land Conservation Initiative~pW N OF DATE: TO: FROM: SUBJECT: COUNCIL AGENDA REPORT OCTOBER 16, 2006 MEETING DATE: 10/16/06 ITEM NO: 1.2b DESK ITEM 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: ,r NAMGR\JHaruyama\Staff Reports\DeskItemMeasureA.doe Reviewed by: jAssistant Town Manager Town Attorney Clerk Administrator Finance Community Development V Silicon. Valley Association of REALTORS October 16, 2006 Honorable Diane McNutt Los Gatos Town Council 110 East Main Street Los Gatos, CA 95030 Dear Mayor McNutt and Councilmembers, The Silicon Valley Association of REALTORS© represents 4,000 real estate professionals in Santa Clara and San Mateo Counties and would like to comment on Measure A, the proposed Santa Clara County land use initiative (10116106 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 encouraging the appropriate preservation of unincorporated 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 are considering for endorsement, is not the most appropriate or effective way to create open space and may have many unintended consequences that cm, -t and will cause harm to unincorporated Santa Clara County. Before making any decision on an initiative, which will cause dramatic 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 included are the ballot arguments filed with the Registrar of Voters in opposition to Measure A. On June 20, the Santa Clara County Board of Supervisors certified the initiative for the November 2006 ballot, but declined to seek a study on how it would irapact the county's economy and taxpayers or an analysis of exposure to the county from litigation, should the initiative become law. However, a memorandum 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. Furthermore, the memorandum indicates certain sections could expose the county to "an 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 Council considers an endorsement- t9400 Srcvcns Crick Blvd., Suirc 100 • Cupertino, CA 95014 Phone: 408,200.0100 • Fax: 408.200.0101 - www,silvar.org Z8!-d Sl0/Z00'd 19fi-1 9119-av6-059 SJOIIEaa 10 ual#elaossp A811EA U03Il!S-AU:l SZ:Zt 90-91-100 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 County, 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 mote, "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 contend that their property has been substantially damaged as a result of the restrictions on property contained in Measure A" A copy of the County Counsel's memo is also attached. Thank 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 potential consequences of this initiative, please feel free to contact our office. Sincerely, (~Z~ Paul Cardus Goverriment Affairs Director Silicon Valley Association of Realtors 408-200-0100 Phone 408200-0101 Pax Z92-d 510/600'd 196-1 9119-9q6-099 SACIIES6 40 U014EIOOSSY ASHEA uo211t$-HUJ 5Z°Z1 90-91-100 NO QN 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 behu7d closed doors, without public input or review. Created by a former Stanford University professor, it conveniently exempts one of the largest private landowners in the county - Stanford University -permitting the university to develop sensitive rural lands 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 more 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 County General Plan. Correcting mistakes will be extremely difficult. A change as small as providing for constriction of a granny-flat on a single-family residence would require an expensive countywide election. Source, Measure A, Section 22 • Because Measure A restricts farmers' ability to construct processing and other facilities, obtain financing for improvements, and adjust to changing market 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 partieipatioi), the foundation of much of the county's agriculture. It could prohibit farmers' markets in rural areas, and even block construction of wineries and tasting rooms. Source: Measure A, Sections 7(a), 7(b), IO(b)(2), II (b), 12(6)(2) and 25 • Measure A threatens our local economy by blocking construction of the county's proposed wireless communications network, designed to provide high-speed internet access everywhere in the valley. This network is central to our county's economic development strategy. Z81-d 510/Y00'd 196-1 9119-8fi6-099 saolleq 10 uoI le IOossy As ,iEA 03 1!S-M6a 92:Z1 90-91-100 Source: Measure 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: Measure A, Sections 10(b)(12) and (19), and 12(75)(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 improvements, Source.- Measure A, Sections 7(a). 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, untested provisions. Information: www.VoteNoOnMeasure.A,.com t81-d 510/500'd 19E-1 9119-8V5_059 sao}l'N 40 uo!tePossp 4211RA UOnll!S-IUJ 9Z:Zt 90-91-100 At3ANSTMCMUfEA 1 ARGUMF.NTAtAfWMWUREA.CentMuod intormetlorrr wwx.VotsNeonNftdMVrA.aam WrMen behind *sad damn, without public Itemtings or ehv'uatrruentaf review, Measure A ioolta hundred! e1 COrtIpIOiC /s! OonaW F. Gage drangee into our County's Qbneral Plan. Supemor, Santa Clara County so poodywrtft it Could 14141 is years of ollponsin lawou", with #W Laudo Smith rrudpoyDra !oohs tot minions of dollars in damage da>ma. Sano ln County Sheriff Contol MteW" VA be d1h1cull. Ch 005 as !,mall as le/.lermy Cluny Director, 5ania Clam County Farm (tumau eANQ eonatrudtng a granmr-fiat could re4wre an expansive wild sleotion. tit Oougglag A. "ea Qrasidont, 91faon Valley TmayeCS Association THREATENS FARMUG lal Clarence C. 5tono F&n%y rarmete have been stewards of our agerwwral hert*e for Chairman, Same Clara County Hillside Amcfalon gsaerauons. Measure A threatens !lash survival, regdiing minimum panels of 40.180 acres an bbides and f 8O scree on rencKra. Since 40% of ocunty farms ado INS 8ten 10 acres, "A' could make tt Wimssihie for Isrmats to gat Bladed, expand, oanstW proce Whit fadA les, or a* W 10 &a*v markets. it could even pmhU reran' nukots and block conStmcdotr of wineries and tasfkrg rooms. That's why the County Pwm Bureau and agftftral ordaaizatlons oppaee "A.` UNDEFONES GOOD PLANNING, PUVIL1C 00914 SPACE AND WADLIFE HABITAT Me%= A encourages premature annexation of rural lands into if"10ota1e0 cities, leadrtg to more $prowl, mam talk or already conVOW made, and otraln on city laollNes and services. n breaks open space into hundreds of diinnneoted private parcels wih no pobb aocoss, end kagmcnie wildllte luebitat oanidorc, HURT9 OUR ECONg41Y Ntaitsuro A toted block conciructim of the county's w r%19ee coninu ilotts rook, dsgdgnvd to prcvfde W9h Spead Imernet acoo9s everywhere in the valley, and woman the'digilal divlda? 11 restricts craft facIllep Ike lWfI s and puatdes in unineorparated areas, InoreasIng tianspoitathan DWs and sbenOR aconarnic growth. THERE1 A BETTER ALTPMTIVF Ro Wrxtts, sWronmerttalft and county planners have Imrested thouw-di of Wm dayelo*g tough new odd oRM to saleguaid hllsl&z. viewshad9. waterways end agrdaulural lands. Measure 'A' wipes out Ihese ottorts, substituling a poooy-Wdbert mnesum that could make things much worse. Z81-d 5l0/900'd 19E-1 9119-8p6-059 Bootless }p uD1}e,~ossd ,tali~n tro~,i!s-!Need SZ~ZI 90-91-1~0 7At. TO ARGUMENT IN FAVOR OP MEASURE A HaWrrn TC ARGUMENT IN FAVOR OF MEASURE A Continued A: A SOLUMN W SEARCH OF A pRD'BLEM Promoters claim MeasUta A Is neoded to meet the throst of DON'T RISK OUR PJ UR9. VOTE "NW ON MEASUR9 A 'Ihauiw dg of houses and tndusirtol and cornmertieh developments" id pate McHugh County SupeNwr IM o09nnuro►a1 and industrial davelopmontc are already btaJ.dtordano prnhibiled an hillsides or fancNands in Sania Clara County, the De h mi Coiutdln>Bm69t wm covered by Measure A p el ft. m1tv Masi sprawl developmem in the noun has ooamed within p W Prresesiiddee nt Softie Saftnie ~ Clara County Gaalernen`sAssaclaucn te Incorporated cities. qgy,-agth9 g 12 sioa ft /at Dennis Wan MEASUt9E A 9MCOURAGM 6AAWSUIT6, NOT 0000 PtANNIHO Pmstdom, Chinesedtmmbran Chamber at Commerce 04 t9r9>a promoters claim •...it would not violate any parson's ptopatty I tsl (30,90 E. dom. Prosidegt fmigo GugNehmO Winery untntei Under mmwe A, property owners seating even minor modifications to their property, could be no;Ored to tie lawetdls stand expensivewunfywlde cnmpaigns to"prolea' ihsierighis. [Meam+re A, section 221 MEASURE A NUW3 FAMILY FARMING Contrary to pwatere decepWo cialms, Measure A riettims construction of gdcuend other related facUiilea, requiring Unity 1=00d, sAwl for produns pm Win iktdted areas designated by the Mative. r4ft*rm is 14 Mrs not o real fa and ranches w Hy uwamIning the finWitdotl v►abNity ggricullura. Mews, A could totro farmers w dose or relocate, end accelerate toes of farm and ranch Iends, MEASUIM A COULD COST TAXPAYERS M LLIONS M amlion to exposing taxpayers to mNNens of &van In lawsuits, Measure A *to out millions more In 491011119 and polential propeify tax revenue sill impad toes, tondpgg taxpayers to U laose between reduced public Willy sotvras0 w d road knprottments or higheriexec. (8sdlcna 7 and 5.16 181-d 54/100'd 196-1 9119-Sq6-059 SIDIIE4 10 UDiteiaossy 4911BA U0011!S-11041 9ZrZl 90-91-100 i y C OF 7= Co Vr4TY COUNSEI, C O :ISTY OF SANTA. C7.ARA 70 Wcst scdding Street Y' Floor, East Ming S= :ose, California 95110-1770 (408) 299-5900 (408) 2WZ40 (FAX) October 3, 2006 Professor Girard P-o ! For Land and Nature ?2' Fast Bayshore Road `.'.,o, CA 94303 Re: Analysis of Proposition 90 .dear Professor Girard: Arai Mitlcr Travel CoLIM COUNSEL Winifred Botha Robert C. Campbell Nancy 3. Clark 1,aurie F. Faulkner AsswTANT CouKry Counsm This letter is in response to your letter to me dated September 27, 2006 concerning the n, alysis of Proposition 90'prepared by this Office for the Board of Supervisors' Lcgisiativc ~r ,i;ttee. You assert that the statement in that analysis concerning Measure A, is wrong and you ask that we correct what you perceive to be an emr. We have taken another look at the provisions of Proposition 90 said. Measure A atsd reviewed the statement in our analysis of Propositi= W. For the reasons set forth below, we -:aitiau e to believe the statetent is accurate. ?he statement to which you refer is a brief paragraph in a S page analysis of Proposition 90 winch would amend provisions of the C,,allfornia Constitution concerning government acdons to acquire or regulate private property. A key part of proposition 90 would require that ;waive ent agencies provide compensation to ownc2s when private property is "damaged" as a gova nnont actions which restrict the use of property. The statement was not intended - z ,-aWlet analysis of Measure A.. The purpose of the paragraph as well as tho paragraph ~7sceci7.g it was to alert the Committee to the potential scope and impact of Proposition 90 on -<.a ulatory and other actions which may betaken by the Board. Speoife mention was made concerning the potential impact of Proposition 90 on Measure A, because,, if the measure passes, it will have a significant impact an County, land use policies and practices. It is appropriate for *',ie Committee to be aware of the legal issues and questions concerning Proposition 90, '=-luding the interaction with 1vleasare A,, even though many of the answers are as yet uncertain. d91-d 910/900'd M-1 9119-M-059 SAOIIB96 40 UCIIE120SSY AeiIEA u031 its-MV 9Z:Z1 90-91-100 Professor Girard P,c: Analysis of Propositioift 90 3cteb~r 3, 2006 ;Fags 2 The statement to which you object reads as follows: Ii Proposition 40 and Measure A. the laud use initiative, both pass, there would likely be n=erotzs claims for ootnpensation filed by property owners who contend that their property has been substantially damaged as a result of the restrictions on property contained in Measure A. These claims would have to be individually evaluated, and p'stentially litigated„ to detminino whether Proposition 90 applies and, if it dees, the torzpensation, if any, to which the property owner is entitled. Although the statement did not conclude that Proposition 90-would apply or that compensation would be required even, if it did apply, you believe that the statement is wrong based on the language in Section, 5 of the measure. You state in your letter: if. both 90 and A pass, the provisions of A, by Section S, would noAlrr~wauld not be =licable, would not be operative, to the extent that they were contralryto, inconsistent with, in anyway. Proposition 90 (assuming 90's validity). And tae County would, not be subject to any liability. By the way it is written, Measure A cannot subject the County to liability. The issue in every instance is applicability of the measure, mot validity. If it would violate anyone's rights [Measure A] is not applicable. (E%Vhasis yours) We disagree with your statement that "By the way it is written, Measure A cannot subject the County to liability". A careful reading of the language of Proposition 90 and Measm A ,earls us to conclude that if application of Measure A to a patticWar parcel results in "damage" to parcel as defined under Proposition 90, Measure A would still apply and payrnent of ^inp rr~, ors to the propcrr-ty owner woul d be required by Proposition 90. Subdivision (a) of Section 5 provides, Notwithstanding their literal terms, the provisions of the Initiative are not ;.plicable to the extent courts dct ine that if they were applied they would deprive any persons of rights or privileges under the United States or State constitutiota5 or laws, including "taking" property without requisite compensation, or would be contrary in any respect to the constitutions or law. 'T'hese explicit limitations on applicability of the Initiative are to make certain that tts provisions do not infnngc legal rights or violate the law in any way, or subject the County to any legal liability. (Emphasis added) S"don 5 requires a determination by the courts that applicatiox► of Measurc A would be contrary to law before the County would be relieved of the obligation to apply its provisions. ',hat means the County would have to implement and apply lvJeasvrc A and could not retake its ` - iuation that Measure A did not apply to a parcel because of the provisions of Section t a result, many owners whose property is impacted by the County's implementation of a c A, or by any other regulation imposed on the use of property by the County, are likely Z92-i 510/600'4 19S-1 9119-9q6-059 saot1R4 40 uo!#e!aossy Re1IeA uaz!1!S-Rdi 9d:Z1 90-91-100 ,~'1'''J~t'SS~r QlydId Re: Analysis of Proposition 90 C~ctobcr 3, 2006 : -,Lge 3 *o ale claims for compensation under Proposition 90, particularly since the measure provides tbaz property owners are not liable to the government for attorneys fees and costs i!u any such s=icr1_ Tho County would have to apply Measure A to every affected parcel, and would have to roc Go uatil a court determines under Section 5 that the measure need not be applied. Further, as explained below, it is our view that when analyzed with respoot to the ^t i ri s of Proposition 90, the courts will not find that hnpl=cntatiou of Measure A "would r arypersons of rights or privileges uzzder the United States or State constitutions or laws, d.ins `taking' property without requisite compensation, or would be aontx'azy in any respect constitution or law' . ,Proposition 90 does not prohibit land use regulation by government agencies, including regulation, of the type provided for in Measure AL Rather, -Proposition 90 imposes, on a prospective basis. a constitutional r upirement that a property owner be compensated if the cation of a government regulation results in damage to that property. Because owners whose property is damaged by irnplcznentation of Measure A would receive the compensation to which the law entitled them, the application of Measure A. would not deprive any property owner of any rights or privileges under, nor would it be contrary to, either the United States or Califomia constitutions. very truly yours, Board of Supervisors Pater Kutras, Jr., County Executive Jane Dockcr, Deputy County Executive 4;~ &-L ANN MXt. LER RAVEL County Counsel Z81-i 510/010'd 196-1 9119-EVS-059 SJOIIR4 10 uo!Za!aossy A911EA u0311!S-Mi 9Z:Z1 90-91-100 OFYtC:t? OF THE COUNTY COUNSEL COUNTY OF SANTA CLAIZA 70 West Redding Street 9"' Floor, Bast Wing San Jose, California 95110-1770 (408) 299.5900 (408) 292-7240 (FA)q MEMORANDUM TO: Supervisor Liz K.niss, Chairperson Supervisor James T. Beall, Jr„ Vice-Chair Legislative Cointnittee Peter Kutras, Jr,, County Executive FROM: nn MCounsel Robert C. Campbell, Assistant County Counsel RE; Analysis of Proposition 90 DATE: September 5, 2006 Ann Miller Ravel COUNTY CoTirrsrL Winifred Botha Robert C. Campbell Nancy J, Clark Laurie R Faulkner A&518TANT COUIVY COUNW, The purpose of this memo is to provide the Legislative Committee with an analysis of Proposition 90 which has qualified for the November ballot. This initiative is also referred to as the "Anderson Initiative" and "The Protect Our Homes Act". Proposition 90 would amend the California Constitution to prohibit the taking of private properly for private use. The proponents of Proposition 90 were no doubt motivated, at least in part, by the decision of the United States Supreme Court in Xelo v. City of New London (2005) 1.25 S. Ct. 2655, which upheld the authority of local government to use eminent doman► for private development. However, this proposition goes beyond just restricting the use of eminent domain. This measure would also require govemm,ent agencies to provide compensation when private property is "damatod" as a result of government actions which restrict the use of the property, such as land use, 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 of the proposition, the specific impact on government agencies and this County cannot be measured. However, the fiscal alga policy impacts could be signiftcant. Regulatory actions by t ovemrnent agencies could lead to eompensable damages even though the action reflects sound public policy. Because key provisions and terms of the initiative are ambiguous or not defined, should the measure pass, there will likely be a significant munount of litigation by opponents of the M-i 510/110'd [ON 9119-M-099 s104Ie4 40 u014e!aossy A811RA u0311!5-iUO 9Z:Zl 90-91-100 Memo to Legislative Committee Re; Analysis of Proposition 90 Date; Septcmbcr S, 2006 Page 2 measure including property owners affected by tho restrictions. It will be the courts that will ultimately determi is the scope, application and constitutionality of the provisions of the proposition. SUMMARY OF KEY PROVZS NS OF PROPOSITION 20 Probibits the use of eminent domain unless the property taken will be owned and occupied by a governmental agency and the property used only fora stated public use, • Specifically prohibits the taking of private property for private use. • Provides that unpublished Eminent domain judicial opinions or orders shall be null and void. • Requires that the "value" of taken or damaged property shall be the highest and best use, • Defines "just compensation" to be "that sum of money necessary to place the property owner in the sarne position monetarily, without any governmental offsets, as if tho property had never bacn taken," + "Damage" to primate property includes government actions that result in substantial economic loss to private property. • A property owner shall not be liable to the goveznrneet for attorney fees or costs in wiy eminent domain action. Government powers to take or damage property under a declared state of emergency is jaot restricted by the proposition. • Condemnation powers may be used to abate nuisances such as blight, obscenity, pornography, hazardous substances or environmental conditions, • The provisions of Proposition 90 are to be applied prospectively and shall apply to any eminent domain proceeding that is not yet final. No law, rule or regulation in effect on the date of enactment of the proposition shall be subject to its provisions. DISCUSS1OM ]eminent Domain; In direct response to the Xelo decision, Proposition 90 would prohibit the taking or ' damaging of private property for private use. It trust be for a "stated" public use and then used only for that usc, It also dcf ncs "public use" as more narrow than a "public purpose" and public use does not include takings expected to result in a transfer of property to private ownership for the purpose of economic development or tax revenue enhaticernonts. Proposition 90 does not prohibit a government agency from taking private property for ZSl-d 5I0/Zl0'd 196-1 9119-05-059 9a011B4 40 uo!ItI30HY As IIBA NO1 1!S-Md 1Z:Zl 90-91-10o MGano to Legislative Committee Re: Analysis of Proposition 90 Date: September 5, 2006 Page 3 uses which are clearly public such as building roads, schools, parks and other govtrnrnent- owned public facilities. however, if the value of property adjaccitt to the taking is "damaged" under the now 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 nuisance, including blight, but only as to specific eopilitions on specific parcels. A government agency could not take all of the parcels in an area, for example for redevelopment pusTows, unless it could show that each parcel was blighted, Although "public use" is generally defned, it is not clearly defined. The proposition does not prohibit the taking of property for the transfer from one private party to another if the transfer results from a government arrangement whereby the private party performs a public use. There will likely he 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 of that provision is unclear. ]does it refer only to opinions and orders issued before the effective date of the proposition? If it also applies prospectively, it could mean that only eminent domain decisions that receive a published court of appeal decision will be effective since superior court decisions are not published. Alan, if it applies to past decisions, that may call into question the validity of those decisions and orders. This provision, too, will likely need the courts to ultimately determine its meaning. Valuation of Property and Just Cotngensation Proposition 90 would significantly change the way in which the value of property and the amount of compensation due property owners is calculated. Current law generally requires that a 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. Currently, in determining the value of the property, required dcdieation of property for zoning purposes is taken into account and often, reduces the value of the property for eminent domain purposes. If the property is to be used for government proprietary purposes, then it shall be valued at the use to which the goverment will put the property if that is a higher value; even if that is not a use to which the private owner could have put the property. Both of these requirements will increase the amount a property owner would be compensated. once again, though, the language in these provisions is ambiguous and certain terns unclear. This wilt make it even more difficult than the current procedures for detenmining the amount of compensation due. Z91-d 910/610A 19£-i 9119-OVS-059 SJOI I E4 40 U014 Bossy AS H EA U031 H S- Ud X Z 1 90-91-100 Memo to Legislative Committee Re: Analysis of Proposition 90 Date: September S, 2006 Page 4 "Dam" and the Impact on. Regulatory Takings Perhaps the most significant provision of Proposition 90 in terms of its impact on tho County is the extension of the right to compensation for damage to property by'%egulatory 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 examples of government actions "the downsizing of private property, the elimination of any access to private property, and limitations on the use of private air space". This is not an exclusive list. "Govonwaent 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 environmental regulations. The Legislative Analyst 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, 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 restrictions on 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 does, the compensation, if any, to which the property owner is entitled. Attornag Fees The proposition provides that a property owner shall not be liable to the goverturient for attorneys fees or costs in any eminent domain action. This could result in many meritless claims being tiled 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 Regulations The Statement of Purpose in the proposition provides: This constitutional amlendmcnt 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, charter provision, ordinanco, resolution, law, rule or regulation 181-d 510MOA 198-1 9119-8q6-059 sJO11E y 10 U0119130ssq ReI IEA U031 HS-MM INI 90-91-IX Memo LO T_cgislativc Committoo Re: Analysis of. Proposition 90 Date: Septcmbcr 5, 2006 Page S in effect on the date of enactment that results or has resulted in a substantial loss to the value of private property shall be subject to the new provisions...". Iii addition, the proposition provides that amendments to heisting provisions continue to be exempt if the amendment serves to promote the original policy and does not significantly broaden the scope of the provision. Thds appears to say that existing laws, rules and regulations cau still be applied without being subject to Proposition 90, including the new damage and compensation provisions. The question of whether, subsequent amendments to existing provisions promote the original policy and doesn't expand its scope is likely to be answered in court on a case by case basis meaning uncertainty, delay and increased cost to the County. If Measurc 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 after the Board of Supervisors declares 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 significant, but unknown, fiscal impact on the County and other government agencies. Because of the potential fiscal impact, government agencies may feel it necessary to alter, or not go forward with, changes in law or regulation that affect the use of property even when such changes might roflect good public policy. c; lane Decker Katie Brown Michael Rattigan Z81-i 910/510'd 198-1 9119-876-099 saotlt4 40 U01;t aossy A0111A UDOIH S-Mi V X Z1 90-91-100