The Washington Monthly

October 23, 2006

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.

—Kevin Drum 5:53 PM Permalink | Trackbacks | Comments (86)

Comments

Nobody expects the Spanish Inquisition!

Posted by: craigie on October 23, 2006 at 5:54 PM | PERMALINK

Don't be so sure. They got it through in Oregon with gross sentimental exploitation of 92 year old widows, and guess who's taking advantage of it now?

Posted by: Gene O'Grady on October 23, 2006 at 5:55 PM | PERMALINK

But I digress.

Yes, I already voted against this welfare for free market types. What is with these people, and their "property has more rights than people" mentality?

Posted by: craigie on October 23, 2006 at 5:56 PM | PERMALINK

But then, this is the state that passed Prop 13, proving you can sell almost anything to Californians, at least once.

Posted by: CT on October 23, 2006 at 5:58 PM | PERMALINK

The problem is that most people won't actually research it before voting for it and, I'm sure, the supporters will play up the 'Anti-Kelo' bit and not mention the other effects.

I could see this passing...

Posted by: Henry on October 23, 2006 at 5:59 PM | PERMALINK

If the government prevents you from using your land, you should be paid. It's not really that complicated or radical. The proof of profits would meet the normal rules of evidence barriers.

Do you really want to live in a world where state legislatures can arbitarirly tell small farmers that they can't grow crops and leave the farmers with no recourse? This is the ultimate common sense "help the little guy" provision.

Posted by: American Hawk on October 23, 2006 at 6:00 PM | PERMALINK

While I had reservations about Kelo at the time, my concern was, that if it was rejected, that this assministration would use that ruling as an excuse to give away public lands. Or prevent future administrations from setting aside any land for public use.

These guys are getting too easy to figure out.

Posted by: MeLoseBrain? on October 23, 2006 at 6:01 PM | PERMALINK

If they take your land for a public park, you get compensated. If they pass a regulation requiring you to make your land into a public park, you don't. Just because they let you keep the title to the land doesn't mean your favorite liberal scheme didn't take something from you.

You're just afraid you can't get the regulations you want if you gotta pay for them instead of shifting the cost onto others.

Posted by: Scott on October 23, 2006 at 6:04 PM | PERMALINK

Posted by: dougun on October 23, 2006 at 6:12 PM | PERMALINK

Much of the "profit" that property owners claim that they lose or would lose under various regulations was actually generated not by them but by society as a whole.
Land speculation, i.e. privatizing socially generated wealth, has been a driving force of American development since back in the earliest days of the colonies. Colonists used to buy and sell land that they could not actually go to because there were still Indians living on it. Which created a powerful constituency for war.
It was the 17th century equivalent of getting a highway built near your land. In Japan nowadays, much politics (and corruption) revolves around getting new bullet train stations built.
Much of the rise of house prices is also socially generated wealth that is privatized. You buy a new house for X. Lots of other development happens. Now you have a house that is within driving range of lots of new stores and new jobs and new social opportunities, so of course it is worth more.
Someone in NYC in the days right after the Civil War wanted to tax this socially generated wealth and run the city government based on that. There was even a quite extensive critique of the impact on society of so many people and so much economic activity revolving around privatization of wealth generated socially.
The ultimate expression of privatizing social created wealth was privatization in post-Communist countries.

Posted by: Kevin_r on October 23, 2006 at 6:13 PM | PERMALINK

You will have to look it up, but I saw an article, must have been the NYT, on how all these initiatives are being funded by one rich guy. I will try get the name of the guy.

Posted by: jimmy on October 23, 2006 at 6:19 PM | PERMALINK

This House Is My Home, a group based in Boise that is sponsoring the Idaho measure, Proposition 2, is among groups in several states that have received strong financial help from Fund for Democracy, headed by Howard S. Rich, the New York real estate investor who is chairman of the libertarian group Americans for Limited Government. As of late June, Fund for Democracy had given at least $237,000 to This House Is My Home, about two-thirds of the money raised by the group. The next filing deadline is Oct. 10.

Posted by: jimmy on October 23, 2006 at 6:22 PM | PERMALINK

Scott: If they pass a regulation requiring you to make your land into a public park, you don't.

Please cite a specific case of this actually happening.

Posted by: alex on October 23, 2006 at 6:23 PM | PERMALINK

There was talk of something like that in Colorado. Ed Quillan, a local columnist, said he was going to sue the government for preventing him from growing marijuana on his property if it passed. :-)

Posted by: EmmaAnne on October 23, 2006 at 6:26 PM | PERMALINK

Fine, Scott. I'm sure you'd have no objection if your neighbor decided to put an industrial park next door to your home.

Posted by: CT on October 23, 2006 at 6:31 PM | PERMALINK

Don;t be too sure about californians choosing wisely. Up here in Oregon the voters got suckered into accepting a similar law that RETROACTIVELY required the state to recompense any property owner for any law that affected their land value. id I mention the law was RETROACTIVE?

Or that the guys pushing the law had the balls to say it would cost nothing to implement?

Posted by: Tlaloc on October 23, 2006 at 6:34 PM | PERMALINK

Kevin,

Don't be so sure about the outcome on this one. As one of your other commenters pointed out, Oregon voters signed on to a broad roll back of property regulations with just such a Trojan Horse-type approach.

Steve

Posted by: Steven Davis on October 23, 2006 at 6:41 PM | PERMALINK

The Supreme Court did not invent a new right for local jurisdictions. They affirmed a right that has always existed.

That's how railroads were built along the east coast. States took land from private owners and gave it to railroads.

San Diego's gaslamp district was developed by eminent domain. They took land from one set of private owners and gave it to another for the explicit stated purpose of increasing the tax base.

The only thing different about the Kelo place is they took land that wasn't blighted. That is, it has always been okay to take land from poor people and give it to rich people. Kelo said the law did not require that distinction, and we could take land from middle class people and give it to the rich.

I agree that this is bad public policy, but don't blame it on the Supremes. They just affirmed what has always been done.

Posted by: anandine on October 23, 2006 at 6:42 PM | PERMALINK

This is actually intended to be a broad roll-back of environmental protection laws. In Washington State some of the environmental protection laws are written in such a way that local governments can't just cancel them. If the measure passes in Washington, landowners, or even speculators who merely say they intended to buy land, will be able to drain the public treasuries.

That this is only coming to Kevin's attention two weeks before the election, and not getting very much of his attention at that, speaks worlds about the state of environmental concerns among the professional liberal pundit classes.

Posted by: serial catowner on October 23, 2006 at 6:50 PM | PERMALINK

Conversely, if the state does something that increases the value of your property -- even potential or imagined value -- shouldn't you be required to pay?

Posted by: bart on October 23, 2006 at 6:51 PM | PERMALINK

bart - exactly. How about some compensation for them roads, eh boys?

Why don't these people put the initiative they really want on the ballot - the one that dissolves government and make Bush the Supreme Rule for Life.

Then at least we could have an honest conversation.

Posted by: craigie on October 23, 2006 at 6:55 PM | PERMALINK

I am always amazed as how quickly liberals defend SCOTUS on eminent domain, yet excoriate them for not defending the little guy's rights in any other area of law.
Oral arguments in Kelo expressly stated that any property owner who could not turn as big a tax profit as any other proposed owner (corporations, developers) could have his/her property stripped away, and the taking would be constitutional. Blighted/non-blighted may be how city councils justify their theft, but what made Kelo so scary was not whether or not a city council can imagine some schema for declaring anything blighted that they damn well please, but the fact that a mere showing by someone rich that they can do more with land than the current poor owner is sufficient for a constitutional taking. Sorry, that's not the country I want to live in.
Prop 90 may be overreach to the particular problem posed by Kelo, but making government stop and think before it takes away the rights of property owners is not a bad thing. Right now, when a legislative body passes land-use restrictions, they can do so without any real fear of reprisal or cost, especially when doing so against single-family homeowners. Now, they may have to decide whether every zoning decision is worth the cost.

Posted by: torrentprime on October 23, 2006 at 6:57 PM | PERMALINK

Welcome to the Oregon of today where the voters, in their wisdom, passed Measure 37, mandating compensation, or the waiving of land-use rules, for property owners whose property is diminished in value by government regulations (aka zoning laws).

Or, as some of us see it, mandating compensation for obeying the law. Heck, I like to break speeding laws, so if I can't, I should receive financial compensation, right? I mean, it's a free country and we can do what we want. Either that, or I should be allowed to speed with impunity.

Naturally, property owners whose land increases in value due to government actions (like, say, Dennis Hastert's) do not have to compensate the government (aka, us)for the increase in value.

Posted by: jrw on October 23, 2006 at 6:57 PM | PERMALINK

Anadine,

The Gaslamp District in San Diego was not developed by eminent domain and anyone who says so is lying. The Gaslamp was a 25 year (plus) development by mainly private business people with the assistance of the Redevelopment Corporation. The threat of eminent domain did drive a lot of porno shops out of business, replaced by restaurants and bars.

Croce's has been in business for over 25 years, and nothing has been given to it, for example.

Posted by: Tigershark on October 23, 2006 at 6:59 PM | PERMALINK

I hope you're right, Kevin. I haven't seen any polling data, however, and I am terrified.

Posted by: aphrael on October 23, 2006 at 6:59 PM | PERMALINK

And craigie, before you answer with a ad hominem about "these people", know this: I have spent hundreds of dollars this election cycle to elect Democrats, and consider retaking Congress from the GOP my #1 desire this year. Not all libertarians have any use for Bush or the GOP, and so don't immediately conflate libertarian or land-use political theory with Republicans. The overlap may be large, but it's not total.

Posted by: torrentprime on October 23, 2006 at 7:00 PM | PERMALINK

jrw: Your comparison is silly: You have no right to drive on public roads, regardless of speed. A driver's license is required, agreement to follow the laws of the road was required to get that license, etc. There is no comparison between speeding laws and what a property owner does or is stopped from doing with his own property.

Posted by: torrentprime on October 23, 2006 at 7:02 PM | PERMALINK

Scott: and if the city passes a regulation prohibiting 90-story apartment buildings, and I can get some accountant to drum up figures showing that if I could only build a 90-story apartment building and sell the apartments in it, i'd make a fortune, can I then demand that the city pay me that fortune?

Posted by: aphrael on October 23, 2006 at 7:02 PM | PERMALINK

There are several atrocious referenda on the California ballot for November 7, 2006.

Prop. 85, Waiting Period and Parental Notification before Termination of Minor's Pregnancy, would amend the California Constitution (!) for the narrow right-wing purpose of putting girls already in difficult straits into even more difficult straits.

Prop. 83, Sex Offenders, Sexually Violent Predators, Punishment, Residence Restrictions and Monitoring, is dubbed by its proponents as "Jessica's law." As a rule of thumb, any inititative given a name X's law, where X is a popular first name, is probably bad policy. And it is in this case. Nobody is in favor of adult sexual predators taking advantage of children. But this law does not help. Most adult sexual abuse of children occurs within families. This initiative won't help at all there. It is recognized that these crimes deserve a finite punishment. Offenders are imprisoned for a number of years, and then they are on parole, where they are under continued supervision. But Prop. 83 includes provisions that make rehabilitation less likely. For example, under Prop. 83, registered sex offenders would be prohibited from residing within 2000 feet of any school or park. In San Francisco, almost all residential parts of the city are within 2000 feet of a school or park. If an offender has served his sentence and is ready to re-integrate into society, that includes employment. Jobs are mostly in cities. How is someone supposed to get a job, re-integrate into society, and establish a good support network so that they don't offend again, if there is nowhere to live?

I hope Kevin Drum will weigh in soon against these horrific initiatives.

Posted by: Joel Rubinstein on October 23, 2006 at 7:03 PM | PERMALINK

"If the government prevents you from using your land, you should be paid."

So, how much should your local government pay me for not building a sanitary landfill next door to your home?

Posted by: rea on October 23, 2006 at 7:06 PM | PERMALINK

The Libertarians want to build a waste treatment plant or build a hog farm or build high density apartments or build a refinery next to your home. They do not want any government regulations to restrict business development and protect home owners rights.

These 'property rights' initiatives are all about preventing local governments from making zoning laws. The wealthy corporations that are funding the initiatives do not want any restrictions on where they can build quality of life ruining enterprises.

Posted by: Hostile on October 23, 2006 at 7:18 PM | PERMALINK

For some reason I get the feeling that some of the libertarian-esque commenters here didn't actuall read the ruling in Kelo. Just a haunch. Then again, the last time I talked to a libertarian he compared taxes to the holocaust more than once so I don't expect much from them.

Posted by: gq on October 23, 2006 at 7:19 PM | PERMALINK

torentprime -

The "these people" I refer to are the anti-government psuedo-libertarians who think that all the problems in the world reduce to high taxes. They tend to be mad billionaires who somehow think they should be richer, I guess, and so want to spend their money to get rid of all government, except for the subsidies they undoubtedly enjoy for their own businesses.

There may be some overlap with GOP voters, but I make the distinction.

Posted by: craigie on October 23, 2006 at 7:20 PM | PERMALINK

the last time I talked to a libertarian he compared taxes to the holocaust more than once

See? I can't even satirize these people.

Posted by: craigie on October 23, 2006 at 7:26 PM | PERMALINK

In the libertarian utopia all this is handled by lawsuits.

Your neighbor builds a gravel pit, you sue 'em for the noise, you sue 'em for the dust, the tax and vehicle licencing systems perfectly charge them for the use of the local roads, people who live along streams and rivers sue every land owner in the watershed for thier increased runoff, somebody builds a condo in front of your formerly view property you sue 'em.

Because of details like that actual libertarians are vanishingly rare. Suckers who have bought into multi-decade pr campaigns by narrow wealthy interests are, however, reasonably common.

In the pseudo-libertarian utopia those problems just magically don't happen to the pseudo-libertarian. It's always somebody else who get's screwed.

Posted by: jefff on October 23, 2006 at 7:29 PM | PERMALINK

craigie:
If someone led off with the analogue to this statement: the last time I talked to a libertarian, with something like, "The last time I talked to a Democrat, they didn't even think Osama was a threat to our country!", how much credence would you give it?
Jesus, "someone told me once something bad and I'll use it to describe the entire range of people" is supposed to be GOP tactics, not serious debate.

Posted by: torrentprime on October 23, 2006 at 7:35 PM | PERMALINK

But I'm not talking about all "libertarians," whatever that term may mean - I'm talking about the people who put stuff like this on the ballot.

I think you're being too thin-skinned. Relax.

Posted by: craigie on October 23, 2006 at 7:42 PM | PERMALINK

Let's give them their compensation for taking if they agree to pay fair value whenever a government action increases the value of their property. Funny how they never mention the increased value government provides to property through public transportation and highways, pollution control, police protection, exclusionary zoning, etc.,etc.

Posted by: markg on October 23, 2006 at 7:48 PM | PERMALINK

The measure in Washington state, ostensibly sponsored by the state Farm Bureau, who is actually running cover for the Master Builders Association and the like, is being marketed the same way the asshole Rethugs have tried to sell repealing the inheritance tax - it curtails the use of or even destroys the use of the family farm! As about 90% of Washington's farms are east of the Cascades in the mostly low growth area of the state, areas that have next to no development pressures, the measure has nothing to do with placing burdens on the family farm.

In fact, a number of agricultural groups west of the mountains are opposing the measure.

http://www.horsesass.org/index.php?p=2091

http://noon933.org/about/endorsers.php

The real reason for the bill is to allow the development of every scrap of property left west of the mountains whether it is appropriately zoned or not (wetlands; commercial in SFR areas). It's an extortion measure - let us develop this or pay us. You'll have about every other transaction being contested in court.

Posted by: JeffII on October 23, 2006 at 7:59 PM | PERMALINK

Washington state is voting on a similar initiative this year, and as others have pointed out Oregon passed one a year or two ago. In Oregon, because there is little or no money to challenge the claims or to pay off the claimants, the result tends to be that the property owners who file the claim win by default.

Posted by: garf on October 23, 2006 at 8:00 PM | PERMALINK

イ‘mヴォチンg阿賀印stてぃs。

Uhh, oops. Wow, and I thought putting your fingers on the wrong homerow made for weird typos...

Anyhow, 'I'm voting against this':

This is basically a way for guys with money to push laws around to let them do whatever they want. Neighbor not want that carbon emissions? Sue the city to allow it. Heavy metal restrictions hurting you? Not anymore!

Think of the number of places that would have handily sued for imaginary gas stations during the last decade...

This is just a way for some rich guy to buy land, and either sue for his way or get paid for not violating laws that we passed. It's developers putting their right to blackmail communities into law.

Posted by: Crissa on October 23, 2006 at 8:01 PM | PERMALINK

It should also be pointed out that 92% of the pro-90 contributions come from a single real estate developer in New York. One guy who happens to have a ton of money...and who, as a result, now stands a fair chance of making it impossible for Californians to govern ourselves.

Posted by: Tom Hilton on October 23, 2006 at 8:04 PM | PERMALINK

These types claim what amounts to a vested right to squeeze the maximum monetary value from their property. So if the local gov't zones the area for only 20 acre lots not 1 acre lots, then they claim foul, even though they could make millions developing the 20 acre lots. Or if the EIR says that to prevent environmental damage, they can build only 25 clustered homes on a 100 acre parcel, not 100 homes, then they claim the difference, even though there is no constitutional right to develop property free of reasonable restrictions. And what of the people downstream who might have their water supplies curtailed or polluted? This is just one more grab by the have more than enoughs.

Posted by: Mimikatz on October 23, 2006 at 8:14 PM | PERMALINK

Thanks for blogging this, Kevin. Prop 90 is classic voter trap, sell them on solving a largely nonexistent eminent domain problem, and add in provisions straight from a extreme libertarian's wet dream. Thanks Howie Rich! I hope California voters are smart enough not to fall for this bull.

Posted by: jsegall on October 23, 2006 at 8:15 PM | PERMALINK

So, all of the bar owners that lost business when they passed anti-smoking laws can sue?

Posted by: Jim 7 on October 23, 2006 at 8:17 PM | PERMALINK

Oregonians are a weird lot. They shot themselves in the foot years before this when they set up the state constitution so that any "excess" tax revenue must be refunded. Therefore, they never have a "rainy day" fund when revenues are down The state's schools are in a shambles because of this.

Posted by: JeffII on October 23, 2006 at 8:18 PM | PERMALINK

Thanks Howie Rich! I hope California voters are smart enough not to fall for this bull. Posted by: jsegall

Considering Prop 13 and who's governor, history is against them.

Posted by: JeffII on October 23, 2006 at 8:24 PM | PERMALINK

Zoning is a tool of the rich.

[I realize this isn't the topic, but zoning is one of those topics...]

It allows the rich (who disproportionately influence the government) to effectively place deed restrictions on land they haven't bought.

In places without zoning, the only way for the rich to place deed restrictions on land is to buy it.

Since I'm from the largest city in the nation without zoning laws, I think that zoning laws
(1) make cities prettier [you can hide those ugly poor people and their industrial workplaces], and
(2) make cities more expensive, as much regulation tends to do.
Though my city may be ugly, our poor can afford to buy housing and the ease of building a business provides all of us jobs.

Posted by: M.G. on October 23, 2006 at 8:24 PM | PERMALINK

Don't be so sure. They got it through in Oregon with gross sentimental exploitation of 92 year old widows, and guess who's taking advantage of it now?

Why shouldn't railroad, timber, and mining companies be able to get the same benefits as little old Mrs. Prichart? Post-1970 zoning laws are just as draconian for them and they represent 98% of the affected long-term landholdings. I suppose you think they should pay inheritance tax and get a new deed everytime their CEO dies?

Posted by: American Hawk on October 23, 2006 at 8:24 PM | PERMALINK

Taxes reduce the value of a bank account.

Does Oregon have to refund taxes?

Posted by: Jeffrey Davis on October 23, 2006 at 8:25 PM | PERMALINK

Oregonians are a weird lot.

About half of them are from California. My guess is that the Kelo measure passes.

Posted by: toast on October 23, 2006 at 8:32 PM | PERMALINK

rea asks (sarcastically) so how much should the government pay me for not building a sanitary landfill next door to your home?

Fair point. But, suppose you bought the land for the purpose of building a landfill, because it was zoned to permit such use. Then, subsequent to your purchase, the zoning was changed. Are you entitled to recompense?

More realistically, people have bought lots on the coast in order to build a home. Then, when the zoning changed, their land was almost useless to them.

The real problem with Kelo is the opportunity for skulduggery by government officials. I know of one case pending where the government is in the process of taking over a private golf club, with the intent to give the land to some other group to build a golf club.

Posted by: ex-liberal on October 23, 2006 at 8:32 PM | PERMALINK

Tell me when the libertarians stop jizzing. I have to visit sometime next year, but the concept wigs me out.

Posted by: B on October 23, 2006 at 8:35 PM | PERMALINK

Tigershark The Gaslamp District in San Diego was not developed by eminent domain and anyone who says so is lying. The Gaslamp was a 25 year (plus) development by mainly private business people with the assistance of the Redevelopment Corporation. The threat of eminent domain did drive a lot of porno shops out of business, replaced by restaurants and bars.

Croce's has been in business for over 25 years, and nothing has been given to it, for example.

Pleaes don't call me a liar. It depends on which part of the gaslamp you're talking about. It was used for some parts and not for others.

Regarding Horton Plaza, for example, from the Centre City Development Corporation:
http://www.ccdc.com/resources/resource_files/Downtown_Today_2005_Summer.pdf
"The ability to use eminent domain ... was crucial ... Without the power of eminent domain, downtown San Diego could not have produced 11,500 new homes ..."

http://cinematreasures.org/theater/710/
"The agency acquired the once-opulent (Balboa) theater next to Horton Plaza through eminent domain in 1985 ..."

http://www.asu.edu/copp/morrison/PlayingtheInsideGame.pdf
"In the early 1970s, the city created a separate redevelopment agency just for the downtown -- the Centre City Development Corporation -- and gave it wide latitude to condemn and purchase property."

http://www.signonsandiego.com/news/state/20051028-9999-7m28develop.html
The use of eminent domain in San Diego has resulted in such high-profile projects as the Horton Plaza shopping center and Petco Park.

Posted by: anandine on October 23, 2006 at 8:39 PM | PERMALINK

Actually, when the value of your property goes up, you do pay the government more. The goverment assessor raises your assessment and you pay more property tax.

Posted by: Thomas on October 23, 2006 at 9:04 PM | PERMALINK

Anandine,

Actually, fit the word fits, it fits. Horton Plaza is not the Gaslamp, it is across the street from the Gaslamp. So the use of eminent domain in Horton Plaza does not mean the transfer of land from one property owner to another in the Gaslamp. Because there was eminent domain in the Horton, the Gaslamp rose and prospered.

Posted by: Tigershark on October 23, 2006 at 9:19 PM | PERMALINK

Dear American Hawk,

I might take your hypothetical more seriously if it hadn't been for all the Oregon mining companies that have left their toxic waste to clear up, at large expense, after they left. And, if the initiative was about letting mining and timber companies make a bigger profit, I have to say their ads did a good job of hiding it.

For what it's worth the guy behind Prop 37 is a Democrat.

Not to mention there's some possibility that these resource exploitation companies had just a little government giveaway to get them started, although if you can figure out the forest land holding patterns in this state you're a better man than I.

In fact the Oregon initiative has left a mess -- unclear on what continuous ownership means, and whether and how development rights can be transferred. And I know from a reliable source that developers who have (or may have) Prop 37 rights are in many cases extremely reluctant to exercise them since there are enought legal complications that banks and other financial organizations are reluctant to fund the development.

Posted by: Gene O'Grady on October 23, 2006 at 9:21 PM | PERMALINK

Anybody else feel a burning need to buy a headset?

Meanwhile, in news that I don't think Kevin has addressed: State ranked 47th smartest. And, no, it's not Alabama or Mississippi.

More on that here: vdare.com/sailer/061022_iq.htm

And, if you'd like to be really, really scared, read this new House report:

tinyurl.com/y9msjh (PDF file from house.gov)

Maybe Kevin is waiting until Halloween to discuss that report.

Posted by: TLB on October 23, 2006 at 9:36 PM | PERMALINK

Actually, when the value of your property goes up, you do pay the government more. The goverment assessor raises your assessment and you pay more property tax.

By the same token, when the value of your property goes down, the government pays you. The government assessor lowers your assessment and you pay less property tax.

Posted by: brooksfoe on October 23, 2006 at 9:39 PM | PERMALINK

on takings... the thing i don't get is this:

if the government has to pay a land owner for any (even potential) loss of property value, then why does the land owner not have to pay the government for increases in property value? for example, say, when a site is upzoned, or a freeway is built with an access point a half mile away from your vacant lot?

this is the blunt truth: unless you actually live within a city, a high percentage of your land value is likely due to government infrastructure. now, i am not the biggest fan of zoning, and maybe zoning laws should be reformed, but this kind of "fix" is a massive over correction. zonig nlaw reform needs to take place at the local lever where people can see what actually, you know, works.

Posted by: colorless green ideas on October 23, 2006 at 9:41 PM | PERMALINK

But isn't this a more progressive way to pay for the 'loss' of value? Under the current system the person that owns the property 'pays' for the loss of value when it's designated as a wetland and can no longer be developed. This person may or may not be rich. Under the new system the 'loss' is paid for by the state. Since the state is funded by a progressive taxation schedule this is a more progressive method. Also, this will help get this on the books. By forcing a dollar value to be assigned there is a public record to track an compare environmental set asides.

as an aside: The reason the Fifth amendment was important was that people were concerned that the government would take property without any compensation. It wasn't created to give the government a new power (eminent domain) it was created to limit that power and recognize the rights of property owners.

Posted by: Joe on October 23, 2006 at 9:49 PM | PERMALINK

Actually, when the value of your property goes up, you do pay the government more. The goverment assessor raises your assessment and you pay more property tax.

True to an extent, but this is California and there is a thing called Proposition 13, which ensures that assessments cannot approach reality if your property gains significant value.

Posted by: Hob on October 23, 2006 at 9:51 PM | PERMALINK

I see. They didn't actually shoot the gun, they only pointed it at the shopowners.

Posted by: hayek on October 23, 2006 at 9:53 PM | PERMALINK

Oh, they do, they do. You should see what happens to your property tax bills when "public improvements" happen around you.

Posted by: martin on October 23, 2006 at 9:58 PM | PERMALINK

More on that here: vdare.com/sailer/061022_iq.htm TLB at 9:36 PM

Vdare? Tom Brosz doesn't even try to hide the racism any more. Remember this blast from the past? Not worried about any Mexicans taking MY job. I quit doing field work when I went to college. Posted by: ="mailto:tbrosz@rotaryrocket.com" Posted by: Mike on October 23, 2006 at 10:23 PM | PERMALINK

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Posted by: dsf on October 23, 2006 at 10:57 PM | PERMALINK

Tigershark,

You have a very narrow definition of the gaslamp district, and not the one the CCDC or the visitor's bureau uses.

And do you have any good reason to think I'm lying rather than just misinformed? Do you always attribute the worst conceivable motive?

Posted by: anandine on October 23, 2006 at 11:33 PM | PERMALINK

Just wanted to say I saw in on a focus group asking for reactions to this measure a few months ago. At first it does sound reasonable, until you get into the nitty-gritty of the details and definitions. By the end of the focus session, it was clear that the measure should get a no vote, yet some in the group still supported it, thinking it would protect their homes from being seized by the government (and one enterpenurial type, who thought he could get rich by buying some wetlands then suing the government to reclaim his losses if they passed any laws to stop him from draining them).

Posted by: Steve Biodrowski on October 23, 2006 at 11:52 PM | PERMALINK

The last Field Poll was in early August: For, 46%; Against, 31%; Undecided, 23%.
Error: +/- 5% and early days --> Essentially a tossup.

Evan Halper, LA Times, had a story last week: http://www.latimes.com/news/local/la-me-bond18oct18,1,3980371.story?coll=la-headlines-california

Posted by: wgd on October 24, 2006 at 12:47 AM | PERMALINK

"...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."

nice bit of insight into the liberal view of federalism: the national government ought to ensure that all wheeled office chairs are ergonomically designed, set tariffs to protect sugar growing conglomorates from "unfair" foreign competition and prevent people in montana from owning menacing looking firearms... but why bother instituting a federal policy that would preclude the goverment from bulldozing over your home so that someone else can build luxury condos?

Posted by: lost lib on October 24, 2006 at 1:08 AM | PERMALINK

A simple anti-Kelo initiative might have had a chance of passing.

Its really not easy to craft a "simple anti-Kelo initiative" that wouldn't move very far toward a "libertarian wet dream" on takings, because Kelo, despite the hysteria it provoked because the landholders affected were middle-class homeowners, wasn't any kind of expansion of traditional eminent domain power.

I suppose you could craft a really narrow "anti-Kelo" initiative that prevented eminent domain for being used against owner-occupied single-family residences unless the government was going to retain both title and posession of the condemned land, but I doubt many people would really care about that. To win votes, you've got to do something more dramatic, rather than something mind-numbingly narrowly technical.

Posted by: cmdicely on October 24, 2006 at 3:09 AM | PERMALINK

Your neighbor builds a gravel pit, you sue 'em for the noise, you sue 'em for the dust,

Except, there can't be laws against the noise and dust, because those would limit the use of the land, and the owner would have to be compensated by the government for the costs of those laws, which would entirely cover the costs of any liability he had to you from those laws.

On the one side, libertarians say "it should all be handled by lawsuits", on the other hand, they say that laws that limit use of land demand compensation for the lost use. And, since you can't have a lawsuit without a law...

Posted by: cmdicely on October 24, 2006 at 3:12 AM | PERMALINK

"So, all of the bar owners that lost business when they passed anti-smoking laws can sue?"

Under the proposed Washington State I-933, the right of property "protection" is explicitly extended to PERSONAL property as well.

If passed, the possession of a law degree in this state will constitute a licence to mint money.

Posted by: bobbyp on October 24, 2006 at 9:19 AM | PERMALINK

More: Under I-933, if you bring a claim and LOSE the government has to reimburse your legal expenses.

And these fuckers have the nerve to lecture us on "incentives".

Posted by: bobbyp on October 24, 2006 at 9:23 AM | PERMALINK

It is idiotic to compensate property owners for money they could have made doing things there that are now illegal. Why not just say I could have made millions growing poppies on my land?

Posted by: Neil' on October 24, 2006 at 10:18 AM | PERMALINK

Oh - and remember how libertardians are always saying that those who believe in welfare should pay it themselves? Well, let the libertards pay for these compensations....

Posted by: Neil' on October 24, 2006 at 10:21 AM | PERMALINK

Perhaps if the good citizens of Washington only look south to see all of the lawsuits clogging the Oregon courts over this issue, they might come to their senses and block Tim Eyman again.

OK, is the state has to pay for any perceived devaluation or impediment to increased value of one's property because of any state action, why not:

If a group of investors purchase property in a rural area and then one of the investors places legislation in a bill that will bring a freeway nearby, thereby vastly increasing the value, the difference in value should be paid back to the State of Illinois, or whatever.

Posted by: thethirdPaul on October 24, 2006 at 10:23 AM | PERMALINK

Perhaps if the good citizens of Washington only look south to see all of the lawsuits clogging the Oregon courts over this issue, they might come to their senses and block Tim Eyman again. Posted by: thethirdPaul

Tim Eyman has nothing to do with I-933, Paul. In fact, I think he's finally run his course, as the last ballot measures he's worked for were defeat or dismissed for lack of valid signitures.

He was working on a way to gut transportation funding, but got shot down.

http://www.nwprogressive.org/weblog/2006/06/right-wing-initiatives-still-threat.html

Posted by: JeffII on October 24, 2006 at 10:49 AM | PERMALINK

Kevin,

Even though I think such propositions as written are a bad idea, it is not quite correct to write that the proposition will "prevent government from ever enacting legislation" that changes the economic value of the land. What the proposition seems to say is that government will have to pay for the loss of value that its laws and regulation cause to the property owner.

My problem with such propositions is the rather open-ended nature of them and the very vague definition of what a "loss" is. For example, if one buys a property for $100,000, with the intention of selling the property at some point in the future to a developer, and the property's market value rises to $250,000, I don't think it just to recover damages based on the larger value if the property is suddenly rezoned and the actual sale price falls to $90,000 as a result.

However, government should be accountable in some manner for the cost of its new regulations that are borne by a small minority of the citizenry who unwittingly are harmed by them.

Posted by: Yancey Ward on October 24, 2006 at 10:49 AM | PERMALINK

However, government should be accountable in some manner for the cost of its new regulations that are borne by a small minority of the citizenry who unwittingly are harmed by them.

No, Kevin only wants to be compassionate and concerned about the environment when the property owner pays the bills.

To whoever, when they make you set something aside as a 'wetland', they've taken it, even if you get to keep a piece of paper saying you 'own' it. Don't get hung up on my use of the term "public park".

When the govt does something that supposedly increases my property value, it does so w/ my tax money. I've already paid the bastards for it and don't owe them for the increase.

We're not talking about the govt building an airport and reducing property values, which would be the better analogy to the counterarguement.

My question still stands. If they take title to your land for a park (take it as a hypothetical if you must), they must compensate you. Why not if they mandate you turn your land into a park but you're allowed to keep 'ownership'?

Posted by: Scott on October 24, 2006 at 11:38 AM | PERMALINK

JeffII,

Thanks for the update - I really should peruse the Vancouver, WA paper more.

It seemed as though, for quite a while, that it was either Eyman trying to get 12 lanes in each direction with no speed limits, ala the Autobahn or the early Kansas Turnpike, or John "I am color blind" Carlson placing initiatives on the ballot.

In Oregon, we have had a Eyman type for a long while, but many of the new initiatives are coming in from out of state money. We have one on the ballot which wants to emulate the recently outvoted Colorado measure to limit state spending. The Publican, Saxton, not only supports this measure, but he has many "secret" plans to fund schools, increase the number of Highway Patrolmen, and several other "Nixon, I have a plan" funding of programs.

Posted by: thethirdPaul on October 24, 2006 at 12:29 PM | PERMALINK

I've never understood the legality of allowing out of state money for state initiatives and the like.

Posted by: JeffII on October 24, 2006 at 12:34 PM | PERMALINK

Hello, everybody, don't know if you've ever heard of the magazine High Country News.

It's a biweekly that is primarily, but not totally, devoted to environmental news in the 11 Western states among the contiguous 48. It is solely about those states; the rest of the coverage is on social issues ... such as Espanola, N.M., having the nation's highest per-capita heroin-related death rate.

Anyway, an issue about two months ago went into big depth on the libertarian "takings" initiatives on ALL Western states' ballots, fueled by the success last year of Prop. 37 in Oregon.

http://www.hcn.org/servlets/hcn.Article?article_id=16409

http://www.hcn.org/servlets/hcn.Article?article_id=13540

Posted by: SocraticGadfly on October 24, 2006 at 1:54 PM | PERMALINK

Didn't have time to read all the comments, but KPCC reported this morning that Prop 90 is winning, more or less.

Posted by: Shine on October 24, 2006 at 2:56 PM | PERMALINK

What about the nutcase Assembly Member DeVore arguing against Prop 1C:
"More than half the cost of a home or apartment rent in California is due to... government interference in the free market -- all of which doubles the high cost of housing."

Posted by: mcdruid on October 24, 2006 at 4:34 PM | PERMALINK

Finally! Glad to see that you have at least heard of Prop90 - it's insidious measure that will virtually wipe out any kind of local government management in open space, zoning, etc if only because there will be no money to fight private property lawsuits indefinitely. The voters of Oregon have been rudely awakened by the consequences of their approval of Prop 37 last year.
Please see: Noprop90.com for details of those opposing and those promoting, Talk it up BEFORE
NOVE 7TH. It's vital!

Posted by: Dorothy Castle on October 24, 2006 at 10:42 PM | PERMALINK

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