Kelo and California

KELO AND CALIFORNIA….Last year, in Kelo v. New London, the Supreme Court ruled that local governments had the right to seize land under eminent domain even if they intended to turn the land over to a private firm for development. At the time, I sort of approved:

The Supreme Court shouldn’t have invented a new constitutional restriction on eminent domain, but state and local governments should enact laws that limit land grabs designed solely to increase tax revenue. And if different states want different rules, and want to apply those rules differently in different areas, that’s fine too.

Well, California has an initiative on the ballot this November that does exactly what I suggested. But a few days ago Ryan Grim warned that there might be a little more to it:

In Arizona, Montana, Idaho, Washington, and California, libertarians, in concert with the business community, have managed to put initiatives on state ballots that appear to be common sense solutions but are in fact extreme giveaways to the private sector from public coffer.

….The plan introduces a “pay or waive” scheme: If any government regulation causes a person to lose property or profit ? even potential, imagined profit ? the government must either pay that person the value of that which was lost or waive the regulation.

“Takings” (from the constitutional restriction on eminent domain, “nor shall private property be taken for public use, without just compensation”) has been a hot button for years among hardcore libertarians and movement conservatives, who believe that if the government does anything to restrict the use of your land (and thus lower its value), you should receive compensation. The Supreme Court ruled otherwise long ago when it gave its approval to the newfangled idea of zoning back in the 1920s, and despite a few recent rulings moving slightly in the other direction, cities and states have retained wide authority to enact land use laws. Most of us think that’s a good thing.

But sure enough, Ryan is right. It turns out that in addition to being an anti-Kelo initiative, California’s Proposition 90 is also an attempt to legislate the long-time libertarian “takings” wet dream. Here’s what the nonpartisan legislative analyst says:

This measure requires government to pay property owners if it passes certain new laws or rules that result in substantial economic losses to their property.

….In addition to the examples cited above, the broad language of the measure suggests that its provisions could apply to a variety of future governmental requirements that impose economic losses on property owners. These laws and rules could include requirements relating, for example, to employment conditions, apartment prices, endangered species, historical preservation, and consumer financial protection.

Nice try, fellas. A simple anti-Kelo initiative might have had a chance of passing. But trying to prevent the government from ever enacting legislation that might have an economic effect on property owners? Not so much. I imagine most Californians will elect to stay in the 21st century on this one.

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