I haven't seen a poll in over a month, but there are some clear signs of hope that this thing with go down in flames.  Proposition 90 (the "Protect Our Homes Act")  is of course a measure that is held out as eminent domain reform in response to the decision of Kelo v. New London in which real property was seized and sold to developers as "public use."

I have already discussed the measure in more detail right here.  I followed up on my own blog with a series of horror stories from Oregon, where a similar measure has already passed.  And I think now the tide may be turning in California.  I hope it's also turning in the 5 other states with similar measures set for this fall's election.

It's generally accepted wisdom that the proposition's early leads in polls will be diminished once voters learn the details.  The normally conservative San Diego Union Tribune has registered its opposition.  As it happens, the State Senate Republican leader Dan Ackerman is publicly opposing the measure.  Nevermind that he appeals to his constituency by indirectly attacking trial lawyers:

Time to kick off my November election coverage, starting with one of the worst of the propositions - number 90. I will probably be fine tuning this and other posts on various initiatives and candidates, and I'll post a comprehensive final version a week or two before the election. I also hope to have, as usual, Tim Redmond of the Bay Guardian to discuss the statewide measures on my October radio show.

Capitalizing on the negative public reaction to the recent eminent domain case decided by the Supreme Court decision, Proposition 90 is essentially intended to force governments to privatize more services while altering 900 years of common law upon which the security of public infrastructure is based. What most property owners don't realize is that they don't really own their property. They own a tenancy in it. The commonwealth owns all of the land within its jurisdiction. Accordingly, it can exercise "eminent domain" to seize land for the public benefit, the Constitution requiring compensation of fair market value of the property.

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The case of Kelo v. New London involved the seizure of property in order to sell it to developers, the theory being that economic development is a "public use" that eludes the minimal 5th Amendment restrictions. The Supreme Court majority voiced reservations about the policy, but refused to null the seizure on the basis that the Connecticut local government had met Constitutional terms thus rendering the issue a state matter with no federal jurisdiction.

Since the decision various states have visited the question of reform at that level, specifically placing more restrictions on the purposes for which state or local governments may invoke their commonwealth rights to the land. Unfortunately, certain special interests have been pushing additional agendas into these reform proposals, and Proposition 90 is one of those "Trojan Horse" initiatives.

Currently, the law of "takings" requires that government compensate property owners when a new zoning, regulation, or statute is passed that deprives the property owner of the essential value of the property. This measure would reduce the standard to merely "substantial" value, and the measure doesn't bother to define the term which will open government up to a floodgate of litigation. Thus every law that could possibly have any impact on property, from rent control ordinances to environmental regulations. Even residential zoning ordinances would be at issue, as well as limited growth, parcel size minimums, ag zoning, worker safety laws, unionization rights, and virtually any benefit from basic urban civil engineering. The measure provides an ill-defined exception for public health and safety, and you can bet that more than a few governments will be trying to expand the scope of that exception, which will lead to even more litigation.

The actual portion of the proposition that actually deals with eminent domain is problematic in it's definitions, but less of an issue for me. "Public use" would be limited to seizures for purposes in which the government would either occupy the property itself, or lease it to a private entity that allows for public entry (such as a mall, baseball stadium, or university). It couldn't be used for private housing, nor private industry, and that's fine with me except that it does reduce a local government's ability to comprehensively plan local development. On the downside, the measure also fails to provide an exception for areas that create a public nuisance without a showing that each and every parcel contains the source of that nuisance, thus hampering redevelopment projects. And it couldn't be used to promote a new industrial or other local economic base in furtherance of a general plan. Personally, since general plans are often dictated by private monetary interests, I think this measure is going to backfire on some of the proponents - the proposal does thus incorporate some characteristics of karma.

And the measure places the burden of proof on government in any court battles, while depriving it the ability to recoup attorney fees.

And the measure also allows property owners to collect more than the value of the property itself, including presumably costs the property owner may have incurred in anticipation of his/her/its own uses, essentially requiring the government to put the owner back into the economic position it would have been but for the taking. Does this mean they're entitled to speculative profits? More lawsuits, and enormous costs to the taxpayer.

The normally conservative San Diego Union-Tribune had this to say:

The initiative then veers into radical territory in two ways:

It declares the compensation for seized property must reflect the value of the project to be built on the site, meaning an astronomical increase in the compensation taxpayers must provide.

It requires that private property owners be fully compensated when any government regulation causes their property to lose value. Decisions on matters as mundane as traffic lights, parking meters and noise abatement could be argued as having negative effects on property value. The vagueness of the initiative suggests this is just what sponsors want – an atmosphere in which local officials contemplating basic questions of governance see legal peril and costly lawsuits at every turn.

Did the trial lawyers surreptitiously take over California's eminent domain movement?

So, while we hope those appalled by eminent domain abuses continue lobbying the Legislature for reform - Sen. Christine Kehoe, D-San Diego, is a key player on the issue - we hope that this dismay doesn't translate into support for Proposition 90. It is a radical overreach that would create vastly more problems than it would correct.

And for an account of the movement behind this proposition and similar proposals in other states, please read this High Country News article.