If Proposition 98 does not pass, then the strategists who decided to pair eminent domain reform with the gradual abolition of rent control will have a lot of questions to answer.

In the year after the 2005 Kelo v. New London decision, twelve state ballots initiatives set to limit the potential expansion of eminent domain set out under Kelo. In ten of those states, the referenda passed.

In the nine states where eminent domain was the sole issue within the ballot initiative, all nine passed. However, when eminent domain was linked with another issue, voters reacted differently. In those three states, eminent domain was successfully curbed only once.

This would suggest that eminent domain reform, by itself, is very viable with voters.

Why pair the two?  A number of theories are plausible.  One is that this is not a case of rent control reform coming along to supplement eminent domain, but just the opposite.  Perhaps the gradual phase out of rent control is really the dog wagging this tail.  Funding patterns hint at this.  Most of the big money for 98 comes from landlords.

A subsequent conclusion from such an analysis would then be that Proposition 99 is less about providing an alternative to Prop 98 for eminent domain reform, than it is about neutralizing rent control.

Rent control initiatives can be successful with voters. Massachusetts, hardly a conservative state, passed an initiative against rent control in the 90s. This study, by a conservative think tank, seems to suggest that getting rid of rent control did increase both the quantity and quality of available housing in Cambridge.

Eminent domain, in the era after Kelo, seems to get a lot of people worked up. Transferring property to the government for a public purpose is one thing, but transferring to a private company in the wisdom that some public benefit will disseminate indirectly, appears to hold less satisfaction. Kelo did include language that said that “nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.”

California’s Proposition 90, which added regulatory takings powers to its eminent domain reform, failed by a small margin in 2006. Regulatory takings are ones that limit the economic viability of a property as a result of a government regulation. This would have great impact in environmental protections, for example.

Proposition 98 represents another mixed proposal. Its perhaps even more complicated, though, because rent control is also very provocative and attracts some support among groups that might otherwise not be energized to even participate in a referendum on a non-general election day.

It appears to be the issue that is holding up the success of Proposition 98. Many renters, as well as female voters, are identifying themselves against 98 in polling.

Environmentalists have added to the list of groups with a critique against California’s June 3rd initiative on eminent domain, Proposition 98.

Proposition 98 is one of two ballot referenda which would curb eminent domain. It has been a focus of MHR because it would also gradually phase out rent control, a protection that governs lot rents in many municipalities in California.

The California chapter of the American Planning Association believes that provisions in 98 could pave the way for a rewriting of many laws that protect the environment in the state. Included are laws protecting air, water, and wetlands. Cal APA also believes 98 could affect smart growth provisions.

The reason is that 98 prohibits the transfer of property where economic benefit is transferred from one group to another. This changes the rules around “takings.”

Environmentalists concede that almost any protection would have the affect of shifting value from one group to another.

• Constrain development in historic neighborhoods, take potential equity from land owners in those locations.
• Protect Mono Lake, harm thirsty people downstream.

The language in Proposition 98 goes even further to provoke questions about how well communities would be able to enforce rules in their own neighborhoods. Would a town be able to enforce a blue law against liquor sales on Sunday if liquor store owners could demonstrate that they would experience a taking?

APA is actually supporting Proposition 99.