Prop. 90 returns, and it may be even worse

The Howard Jarvis Taxpayer Association has filed papers to circulate a new anti-environment Initiative to replace the failed Proposition 90 (interestingly, they don't make any mention of this on their own website). Proposition 90 would have stopped many new environmental regulations on destructive land use, and we joined many other environmental groups in successfully opposing the measure.

Original rumors were that the new version would just focus on taking private property for private economic interests, a less controversial issue, but the proponents seem to have decided instead that the problem with Prop. 90 is that it didn't go far enough in in stopping environmental regulation.

The petition is here. Some commentary on the proposal here:

The Howard Jarvis Taxpayers Association has filed a new initiative to amend California's Constitution. This is a repeat of the just-defeated Proposition 90, only worse. Like Proposition 90, the proposed initiative would hamstring government regulations of all kinds — from rent controls to land-use zoning. But unlike Proposition 90, it would apply to existing laws and regulations — not just future ones.

And here:

In the last election, opponents of Prop 90 successfully argued that it would throw out any new land-use or zoning regulations that prevented real estate developers from making as much money as they wanted. So the Jarvis Association put in some language in their initiative that sounds like it won’t apply to such protections. But by doing so it creates some extra hurdles for government to prove that their actions are constitutional – and would allow right-wing judges to throw out any land use regulations that they don’t like.

The Jarvis Initiative says that its new definition for “damages” would not apply to land-use, planning, zoning or use restrictions – if they “substantially advance a legitimate government interest.” But current law presumes that land use regulations are rationally related to a state interest, and property owners who challenge them have the burden to prove that it is not. While it sounds like the Jarvis Initiative is less extreme than Prop 90, it would actually force government to prove how each and every one of its land-use regulations advance a substantial interest. Even a unanimous Supreme Court in Lingle v. Chevron (2005) agreed that such a standard is excessive.

The website I just quoted has this statement that I'm not sure about:

But the worst part of this initiative is that it is retroactive. Whereas Prop 90 was careful to limit its scope only to new laws or regulations, the Jarvis initiative says that “any action by a public agency” that was passed before the election and “results in continued damage to private property” will be “null and void.” Sensible protections that have been in place before the Jarvis initiative goes into effect could be considered a “continuing damage” to private property. Every protection that Californians currently take for granted are in jeopardy because of this provision.

That language isn't in the petition posted on the State Attorney General website I linked to above (UPDATE: see bottom of the post, turns out I was wrong). There is another anti-environment initiative in circulation, Petition 1233, that "[r]equires public entity taking private property to compensate owner at owner’s stated value, without limitation or review." There may be confusion between the two versions. Even without the language though, this new version appears retroactive - it just requires compensation instead of nullification.

I've read through the initiative, and the key issue is that "damage" must be compensated if a land use restriction denies any "reasonable investment-backed expection" (amendment to Sec. 19(b)(2)(ii) of Article I). If someone's grandfather bought a ranch in the Mount Diablo Range in 1900 with the then-reasonable expectation of subdividing it into one-acre lots, Santa Clara County's decision in the 1970's to stop that kind of hillside development will subject the County to liability in 2008 - if this initiative passes.

I also agree that the procedural changes are significant. Section 19(c) gets rid of deference to governmental agency findings and allows evidence outside the administrative record. Allowing outside evidence is a two-edged sword, because the agency can use it to cure a finding not supported by the record. That particular provision will benefit rich corporations and individuals attempting to drown agencies in litigation, while working against poor landowners with few legal resources.

It remains to be seen whether this initiative will even make it to the ballot, but we'll obviously have to watch it.

-Brian

UPDATE: The "null and void" language is in the initiative after all, in the Effective Date section I had skimmed too quickly.