Vote No to the screw your local Taqueria Proposition

Published May 21st, 2008 edit replace rm!

I try to leave politics out of this blog, but I feel really upset about the Proposition 98/99 vote coming up here in California on June 3rd. Any non California residents feel free to ignore this unless you want to learn more about the screwy politics of this state. The Rastas may have invented the term Politrixians, but California politics seem to have perfected it.

Proposition 98 and 99 are 2 referendums to change the California Constitution to supposedly disallow Eminent Domain. The first one Proposition 98 is called EMINENT DOMAIN. LIMITS ON GOVERNMENT AUTHORITY. and the second one Proposition 99 is called EMINENT DOMAIN. LIMITS ON GOVERNMENT ACQUISITION OF OWNER-OCCUPIED RESIDENCE. So on the outset they sound very similar.

Before we even get to the differences between them…

What is Eminent Domain?

Eminent Domain is basically when the government takes private property for public use. The US Constitutions guarantees that this can only be for public use and can only be done for just compensation. Basically if they take your property they must pay fair market price for it.

Unfortunately in the past century governments have radically expanded what public use means. This is where the trickiness comes in. Local governments have come to believe taking your house and selling it to a mall developer is a public good as it could increase the tax base.

Kelo v City of New London

This whole thing was thrown into the public view a couple of years back when the US Supreme Court basically said this was valid in the court case Kelo vs New London. Where a the New London city council took away 15 homes from their private owners to give to a private developer. Not strangely there was a huge uproar about this and lots of states started passing laws to limit this kind of thing.

Eminent Domain Abuse in California

Drew Carey has made a great videos about a specific case in California, that provide a great introduction to why and how this is done in this state and good alternatives to it:

Also see this one National City: Eminent Domain Gone Wild and this article about How the New York Times forced 55 business out using Eminent Domain to build their new office.

What you can see here is that most of the victims of this are small businesses. Exactly the kind of small businesses that we like here in San Francisco. The local Taqueria, the neighborhood bar, the Filipino grocery shop and hey maybe even your local neighborhood web startup.

The Battling Propositions

All of us voters in California have hopefully been sent the official voters information guide. Which I think is a great. I have read the whole thing and you should to. If you don’t have a lot of time just read the actual texts of them which while filled with legalese is less painful than reading the patronizing rhetoric in the arguments and rebuttals.

Note, when reading it the purpose and intent is kind of like the sales pitch. The actual amendment to the constitution (coders think diff) is the text in italic. Both of these make changes to Sec. 19 of the constitution. The rest are basically implementation rules.

Proposition 98

This was the original proposition. It provides very good and very strong defense against eminent domain abuse. No one has argued that it doesn’t. I will get to the main argument against it afterwards.

The main key clause in Proposition 98 is simply and strongly:

Private property may not be taken or damaged for private use.

The rest of it is basically definitions of what “Taken”, “Private Use” and “Public Use” means. Private Use and Public Use pretty much follow regular common sense definitions of this. The definition of “Taken” is where the controversy us.

Private property includes all private property and not just owner occupied homes. It includes small businesses, farms, apartment buildings and of course owner occupied homes. Through the virtue of their landlords being protected even renters are protected.

Taken==Rent Control?

The people who wrote Proposition 98 added this:

(1) “Taken’’ includes transferring the ownership, occupancy, or use of property from a private owner
to a public agency or to any person or entity other than a public agency, or limiting the price a private owner may charge another person to purchase, occupy or use his or her real property.

Reread the part in bold if you didn’t notice it. This basically eliminates rent control.

Now I am personally against rent control personally and in my libertarian mind rent control is in the similar to transferring ownership. While I retain ownership, the government limits my cashflow from it and also artificially lowers the potential sales price as earnings are lower. However most people aren’t libertarians like me and would justifiably see this as a hidden trojan horse to get rid of rent control.

As a libertarian while I’m against rent control, I do think the way it was hidden in the proposition was wrong.

Anti Prop 98 campaigners have scared lots of older people into speaking out against it because of the rent control provision. If you read the campaign you might be fooled into thinking that thousands of senior citizens will be forced to move onto the streets if it gets passed:

“If Prop 98 were to pass, it would amount to economic eviction for most seniors that can’t exist without rent stabilization. Everyday we see attacks from wealthy landlords to maximize their profits off the backs of those who can least afford to defend themselves. My wife and I are concerned about our survival if Prop 98 passes. If seniors and low-income families lose our rent control and other protections that safeguard our homes, we’ll be left with nothing.” – No on Prop 98 campaign web site

This is frankly a lie they have been fed. Section 6. of Proposition 98 specifically deals with this. No one who is currently under rent control will loose rent control if they stay in their current apartment.

If you think rent control is a good idea or even if you just want the issue to be dealt with in a more transparent manner, by all means vote against Proposition 98. Just remember it isn’t just “Big Business” who are landlords. This also affects lots of “normal people” who might rent out an apartment as they can’t afford to sell it in the current market.

Who is behind Proposition 98?

Proposition 98 is paid for by big landlords if you read the spam I’m receiving daily. This is definitely partly true, but only partly so. The main sponsors are property rights groups and groups fighting excessive taxation. However small businesses who have probably been more affected than anyone else in California by Eminent Domain Abuse and their associations are also heavy supporters.

We should also remember that just because some one is “Big Business” it doesn’t mean their interests necessarily goes against ours.

Proposition 99

This was hastily brought on the ballot by a coalition of California politicians and real estate developers. Basically the very same people who perform and benefit from Eminent Domain Abuse. It was written and worded in particularly to make sure that Proposition 98 wasn’t passed and to make it harder to pass real eminent domain reform in the future.

The basic rule is that it protects only home owners:

The State and local governments are prohibited from acquiring by eminent domain an owner occupied residence for the purpose of conveying it to a private person.

This sounds great and all, however there are 2 huge buts.

No protection for renters, small businesses or farmers

Yes, you heard it right. Your neighborhood taqueria as well as your apartment building is still fair game for developers. None of the people in Drew Carey’s two videos above would be eligible for any kind of protection.

I find it extremely hypocritical that the same people who talk about how much they love San Francisco’s small shops and restaurants are willing to remove the most basic constitutional protection these same shops have in favor of developers bringing in big box stores and restaurants as part of their developments.

No real protection for home owners either…

The thing that surprises most people about Proposition 99 is that it in a hidden way actually specifically amends the constitution to allow politicians selling blocks of private property away to developers.

Section 1.c of 99 says:

Amend the California Constitution to respond specifically to the facts and the decision of the U.S.
Supreme Court in Kelo v. City of New London, in which the Court held that it was permissible for a city to use eminent domain to take the home of a Connecticut woman for the purpose of economic development.

Most people would think that this means to disallow it. However it is pure politicians double speak. It just says that the constitution should address the issue. This it does as well in section 19 © and (d) of the amended text of the constitution.

(d) Subdivision (b) of this section does not apply when State or local government exercises the power of eminent domain for the purpose of acquiring private property for a public work or improvement.

No one is arguing with public work. Improvement though is the what we programmers would call the wild card. Their definition lists a bunch of specific cases and then leaves it open a the very end with this bit in the amendment – 19 (e) 5 :

and private uses incidental to, or necessary for, the public work or improvement.

It basically will still allow them to use “economic development” as an excuse.

The real danger of 99

You might say, well it does provide some protection lets just vote it in. It’s a fair point but I truly believe that if it gets voted in a real amendment with real protection for everyone will be very difficult to get votes in the future. It provides a false sense of security and would lull large amounts of people into thinking it’s someone else’s problem.

The amendment will also make it extremely difficult for people to defend themselves in court in the future.

The hidden knockout clause

Another slightly sneaky part of Proposition 99 is section 9 which eliminates 98 even if both are passed:

SECTION 9. In the event that this measure appears on the same statewide election ballot as another initiative measure or measures that seek to affect the rights of property owners by directly or indirectly amending Section 19, Article I of the California Constitution, the provisions of the other measure or measures shall be deemed to be in conflict with this measure. In the event that this measure receives a greater number of affirmative votes, the provisions of this measure shall prevail in their entirety, and each and every provision of the other measure or measures shall be null and void.

So if both Proposition 98 and 99 win, 98 is to be ignored. Classic politicians move.

Who is behind Proposition 99?

It’s supporters include both politicians of both Democrat and Republican flavors as well as most other lobbyist groups out there. More importantly it has the support of large real estate developers, who depend on Eminent Domain to build their projects without having to pay market price. Their is apparently even some investigation to see if tax payers moneys have been illegally spent on the campaign.

The whole industry of professional politics depend on Eminent Domain as these are the kinds of large visible projects that they can use to show what a great job they are doing and of course for raising campaign contributions from developers.

I do think its sad that all kinds of “liberal” lobbyists like the League of Women Voters and various environmental groups are so vocally for 99. I can accept that they might be against 98 for the rent control issue, but supporting 99 is just so flatly immoral that it really does make me feel sick to the stomach. You can only imagine the political deals that are being made in the back ground for them to accept it. I grew up in and around politics and know only too well how this works, however much it still revolts me.

One spam I received from one such group who shall remain nameless said:

YES ON PROP. 99 – Real and Powerful Eminent Domain Reform with NO HIDDEN AGENDAS.
Prop. 99 would prohibit government from taking our homes to transfer to a private developer.
Prop. 99 protects homeowners from eminent domain, with no hidden provisions.

How can you seriously try to fool your supporters in such a way. It is filled with hidden agendas and provisions.

What should you vote?

You should always make up your own mind about who to vote for and not listen to me or some professional lobbyist group. Read the propositions your self. I’m assuming you like most people don’t think it’s ok to take private property to give to private developers, so I’m not even going to argue that.

If you are interested in learning more why not check out BallotPedia’s page comparing 98 and 99, they have pretty good coverage of the pros and cons and all the juicy controversy around them. This opinion piece from Victorville Daily Press also explains the facts very well.

I would urge you to vote against 99 if your analysis is like mine. I think it’s a dangerous example of the politicians playing us like fools. But then again I maybe wrong and I’d be interested to hear your analysis in the comments.

Whether to vote for Proposition 98 is simple Vote YES if you agree with the hidden rent control clause and NO if you don’t. If you Vote NO for both lets all try to support a proposition in the future that protects everyone and this time doesn’t contain any hidden clauses.

Personally I’ll be voting yes for 98 and no for 99.


Jan Karlsbjerg May 21st, 2008

That’s what you get in direct democracy (as opposed to representative democracy): Politicians and lobbyists have to try to screw you repeatedly, not just that once around election time. :-)

But big props to you, Pelle, for objecting to the way someone is trying to push through something, even though you happen to agree with what they’re pushing!

(I’m a big proponent of integrity)

january May 21st, 2008

Wow, great work. Thanks for the plug.

Bonnie Yelverton May 30th, 2008

Thanks, Pelle, for getting me to read the Voters’ Guide.

I have studied the whole Prop 98/99 guide now and find, as you, no real threat to the environment in 98 as most of my network is implying. I’m not sure where they get that from, unless there’s a very “hidden agenda” I’m not seeing.

However, the real danger is 98 is that it forbids rent control, as you say, as well as the requirement of a certain percentage of affordable housing in developments. This is the real “hidden agenda” which is very damaging.

There are areas, such as the city of Santa Barbara, where middle income people who work in the city cannot afford to live. These are people like police, firemen, schoolteachers, nurses, etc., who have very long commutes to provide qualified services the city needs. Not to mention a retiree who would like to move into something more affordable. We’re not talking about public housing, which is something else entirely. (A real NIMBY thing!) As John and I have discovered, we cannot afford living anywhere but where we live now, because the prices of homes has far exceeded what people can afford to pay.

Rent controls are important in some big cities, so that the lower income population (not the middle-income of “affordable” housing) can have a hope of finding anywhere to live that they can afford to live on minimum wage, which is something like $9/hr., or only on social security, which is less than $1000/month. There are unfortunately a lot of people whose earnings are at this level. The average income in this state is lower than what John and I get by on, and we can’t afford to move to get a one-story house or condo! And (most of) these people are also providing necessary services to the rich people who don’t seem to want them nearby.

For example, the family that owns the neighborhood taqueria would probably not be able to afford living near it. In fact, if they actually live on the property of the taqueria, they’d be protected by 99.

Both 98 and 99 have provisions that they do not apply if the property is the source of criminality or other public danger.

The supporters say that public governments can go ahead and build public housing or provide rent subsidies for these people (as they do in Denmark,) which would seem to me to be against conservative or libertarian thinking, and cost local governments a lot of money they don’t have, because of Proposition 13, which removed property taxes as a major source of income for local governments (and was sponsored by the very same people who are sponsoring Prop 98!)

The only issue with 99 that some people might have, as I see it, is that it only extends added protection to owner-OCCUPIED housing, not landlord-owned housing.

For the other owners it would be “as usual” (which does not mean that at some later date further protections could not be enacted.) That would mean that the town use emminent domain to take over the apartments across the street from us – and that the renters who live there would have to look elsewhere to live – as they have always been allowed according to the existing rules – due payment of property and “only when taken for the public use” (the following is what is being amended in its entirety.)


SEC. 19. Private property may be taken or damaged for public use
only when just compensation, ascertained by a jury unless waived, has
first been paid to, or into court for, the owner. The Legislature
may provide for possession by the condemnor following commencement of
eminent domain proceedings upon deposit in court and prompt release
to the owner of money determined by the court to be the probable
amount of just compensation.

However, it does not do all the other dreadful things that 98 does. 98 goes too far – “the hidden agenda.” Therefore we have decided to vote for the limited extra protection of 99 and against the attacks on affordable housing hidden in 98.

Supporters of 98 say that it will also support farmers whose property is being taken. But if they actually live on their property, they would be protected as well. This would be the case of small and medium sized farmers. However there are many absentee farmers in this state, since many farms are industrially owned. They would not get additional protection. Now, I would like to protect farm land from development, but I expect that most farmland that has been developed was willingly sold, because the farmers got a better price for their property than they could earn by being farmers. (I am thinking of the development of the dairy farms south of Ontario – our neighboring town to the south. Most of the farmers have moved their herds to the Central Valley, where they could buy more property than they had for the proceeds of selling the property.)

In the case that 98 should get more than 50% of the vote, it is even more important to vote for 99 to make sure that it passes.

Your argument (in a private letter) that 98 probably won’t pass anyway so there’s not need to vote for 99 is a hidden agenda as well!

About me

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My name is Pelle Braendgaard. Pronounce it like Pelé the footballer (no relation). I live in Managua, Nicaragua. I am the Technical Lead at uPort a Self Sovereign Identity Platform built on Ethereum.

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