Right-Wing Extremists Promote “Son” of Prop 90

by Paul Hogarth on December 4, 2006

It takes a certain level of audacity to revive a proposition immediately after voters rejected it. But nobody ever claimed that right-wingers weren’t shameless, or that they didn’t have the funds to pay a “signature-gathering firm” to place whatever measure they want on the state ballot. In November 2005, California voters decisively rejected Proposition 73, which would have required teenage girls to notify their parents before getting an abortion. One year later, the same anti-choice millionaire who was behind it put it back on the ballot as Proposition 85 – only to have it lose by the same margin.

Last month, voters rejected Proposition 90 by a five-point margin, which would have made it practically impossible for state or local government to put any reasonable restrictions on private property. Now the Howard Jarvis Taxpayers Association has filed an initiative with the Attorney General’s Office that is dangerously similar to Prop 90. But unlike Prop 90, it would probably invalidate all existing rent control protections in California – and would also have a retroactive effect. Because it is likely to make the June 2008 ballot, concerned activists must act now to ensure its defeat.

In June 1978, anti-tax zealot Howard Jarvis gave us Proposition 13. With an explicit agenda to weaken government to the point of impotency, Jarvis placed Prop 13 on the state ballot to restrict property tax increases in California. Thirty years later, Prop 13 has devastated public funding and has transformed our world-class system of public schools and public libraries that were the envy of the nation to Third World levels. Jarvis may be dead, but his organization continues to wreak havoc in their effort to starve the public sector and reward wealthy property owners.

The new Jarvis initiative pretends to be a less drastic version of Prop 90 – but it’s really just as bad, if not worse. Prop 90 would have re-defined a “regulatory taking” as any new law that would “result in substantial economic loss to private property.” The Jarvis Association has re-written this to achieve the same result, but was careful not to make it so obvious. It defines property as “damaged” if it denies “economically viable use of the property,” which at first blush doesn’t sound bad – because that’s what existing law says.

But then it adds five extra words that drastically alter the definition. Property is damaged, says the initiative, if the law or regulation denies economically viable use for the property — “in whole or in part.” What does this mean? Under this initiative, if a law or regulation were to make private property less profitable (as opposed to not profitable), the owner could argue that they have been denied economically viable use “in part.” This is the same as Prop 90’s definition of a “taking” as lost profits – but in more subtle language that makes it less apparent.

In the last election, opponents of Prop 90 successfully argued that it would throw out any new land-use or zoning regulations that prevented real estate developers from making as much money as they wanted. So the Jarvis Association put in some language in their initiative that sounds like it won’t apply to such protections. But by doing so it creates some extra hurdles for government to prove that their actions are constitutional – and would allow right-wing judges to throw out any land use regulations that they don’t like.

The Jarvis Initiative says that its new definition for “damages” would not apply to land-use, planning, zoning or use restrictions – if they “substantially advance a legitimate government interest.” But current law presumes that land use regulations are rationally related to a state interest, and property owners who challenge them have the burden to prove that it is not. While it sounds like the Jarvis Initiative is less extreme than Prop 90, it would actually force government to prove how each and every one of its land-use regulations advance a substantial interest. Even a unanimous Supreme Court in Lingle v. Chevron (2005) agreed that such a standard is excessive.

The Jarvis Initiative then goes on to re-define a taking in a way that is obviously targeted at eliminating rent control. “Damaged property,” it writes, “also includes limiting the price a property owner may charge another person to purchase, occupy or use his or her property.” In other words, any effort to prevent real estate speculators and landlords from charging tenants whatever the market can bear could be found unconstitutional.

But the worst part of this initiative is that it is retroactive. Whereas Prop 90 was careful to limit its scope only to new laws or regulations, the Jarvis initiative says that “any action by a public agency” that was passed before the election and “results in continued damage to private property” will be “null and void.” Sensible protections that have been in place before the Jarvis initiative goes into effect could be considered a “continuing damage” to private property. Every protection that Californians currently take for granted are in jeopardy because of this provision.

Proponents argue that this measure is necessary to limit eminent domain, but even they concede in their “Statement of Findings” that they also want to get rid of rent control. And the Jarvis Initiative is hardly designed just to protect the little “mom-and-pop” homeowner who might lose their home to eminent domain. The initiative defines a property owner as “any person or entity” that possesses “any interest” in real property. The fact that it includes an “entity” (beyond a person) means that corporations who own property will be “protected” from government regulation as well.

Of course, we should expect nothing less from the Howard Jarvis Taxpayers Association. After all, Prop 13 never made a distinction between residential or commercial property. Its true beneficiary was not the elderly homeowner who enjoys a small property tax bill – but the large corporations who own downtown office buildings and continue to pay extremely low taxes. And the Jarvis Association has bitterly opposed any efforts to reform Prop 13 that would exempt commercial properties (i.e., “split-roll” taxes.)

Defeating Prop 90 was not enough. As infuriating as it is to re-fight the same battle all over again, concerned Californians must be vigilant in protecting our state. Our future depends on it. We cannot let the Howard Jarvis Taxpayers’ Association win this battle.

Send feedback to paul@thclinic.org

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