HomeMy WebLinkAboutStaff Report 236-08City of Palo Alto
Manager’s Rep r
9
TO:
FROM:
HONORABLE CITY COUNCIL
CITY MANAGER CMR: 236:08
DATE:MAY 5, 2008
SUBJECT:ADOPTION OF A RESOLUTION OPPOSING PROPOSITION 98
AND A RESOLUTION SUPPORTING PROPOSITION 99
RECOMMENDATION
The City Manager recommends that the Council adopt the attached Resolutions: (1) Resolution
Opposing Proposition 98 (Attachment B) and (2) Resolution Supporting Proposition 99
(Attactunent C). Propositions 98 and 99 will appear on the June 2008 State ballot and relate to
the use of eminent domain by local agencies. A memo describing the two propositions in more
detail is attached (Attachment A).
ATTACHMENTS
A: Memo of April 8, 2008, Summary of State Propositions 98 and 99 Pertaining to Eminent
No
Domain and Regulatory Takings
Resolution Opposing Proposition 98
Resolution Supporting Proposition 99
DEBBIE LLOYD
Sr. Resource Planner
PREPARED BY:
DEPARTMENT APPROVAL:
CITY MANAGER APPROVAL:
VALERIE O. F6A’G
Director of Utdmes
STEVE EMSLIE/KELLY MORARIU
Deputy City Managers
CMR: 236:08 Page 1 of 1
FROM CITY ATTORNEY
April 8:2008
TKE HONORABLE CITY CO%~CIE
Palo Alto, California
RE:Summary; of State Propositions 9,8 and 99 Pertaining to Eminent Domain and
Regulator}.’ Takings
Dear Members of the. Council:
This memorandurfl summarizes Propositions 98 and 99, two competing initiatives, that
have qualified for the June 3, 2008 State election. Both initiatives relate to local ~overnm~nts’
eminent domain power and restrict how government can take private property’ in California.
Both initiatives are responses to the United States Supreme Court’s 2005 ruling in Kelo v.
Ci® of New Londo~z. In that case, the city’s redevelopment agency condemned fifteen single
family homes in order to convey the land to a private developer for purposes of economic
redevelopment. The Court ruled that such taking did not violate the Fifth Amendment of the
United States Constitution. In response to KeIo, many states have faced legislative and voter
initiated efforts to restrict local government’s abitity to use eminent domain power for economic
redevelopment. In 2006, Proposition 90 (known as the "Anderson Initiative") appeared on the
California state ballot, but did not receive enough votes to pass.
Proposition 98
The Howard Jarvis Taxpayers Association, California Farm Bureau and the California
Alliance to Protect Private Property Rights are sponsoring Proposition 98 known as the
California Property; Owners and Farmland Protection Act (CPOYPA). CPOEPA would amend
the California Constitution to provide that private property may only’ be taken or damaged for a
"stated public purpose" and that "private property may’ not be taken or damaged for private use."
The initiative contains a series of broadly, worded and ambiguous definitions and exceptions tt’iat
encroach on local government’s eminent domain and land use authority,. In fact, many, of the
concerns raised by’ local governments in connection with the defeated Anderson Initiative have
also been voiced in connection with Proposition 98.
There are at least three ways in which the CPOPFA might make substantial changes that
go beyond placing limits on economic redevelopment.
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Tt-IE HONORABLE CITY COUNCIL
April 8, 2008
Page 2
RE:Summary of State Propositions 98 and 99 Pertaining to Eminent Domain and
Regulatory Takings
First, the initiative defines "taking" to include not only acquisition of property, but to
include government actions which "limit[] [he price a private owner may charge another person
to purchase, occupy or use his or her real properW’. Most traditional land use regulations
economically benefit some properties while burdening others. Read literally, this provision
could make unconstitutional virtually all regulation of land use.
The proposed measure is fairly explicit in its invalidation of rent control laws; the
"effective date" section of the measure states that existing tenants who benefit from rent control
can continue to enjoy those below-market rents until the)’ leave, but when they do leave, the
landlord is free to charge whatever he wants to an).’ new tenant.
A less obvious implication the measure would have is on local governments’ below
market rate housing programs, otherwise known as "inclusionary zoning" regulations. Because
these, mandates on developers operate as direct limits on the prices the developer can charge
purchasers or renters for the developed property, arguably they could fall within the definition of
"takings" under the CPOPFA.
A second wrinkle created by CPOPFA’s breadth and ambiguity involves a provision of
the measure that prohibits transfers of ownership to a public agency "for the consumption of
natural resources". The concern here, expressed by the California Governor and others, is that
the measure would limit the government’s ability to undertake public water projects. CPOFPA
supporters declare that the measure would not limit such public projects, but the carelessness of
the term "consumption of natural resources" creates [he risk of unintended public policy.
A third, and related, problem arises because the CPOPFA prohibits government from
taking private property if government is putting the property to the "same or substantially similar
use" that the private owner had been making of the propeKy. Some environmentalists fear this
would prevent government from taking (and paying for, of course) undeveloped property to
create parklands or open space or to preserve unique habitats. If the undeveloped property was
effectively being used as "open space" by the private owner, then the initiative could arguably
prevent local agencies from taking that property and maintaining that use.
Given these concerns, the League of California Cities is opposing this initiative.
Proposition 99
To address the Kelo "bacldash", the League of California Cities and the League of
Conservation Voters are sponsoring a competing measure known as the Homeowners and Private
Property Protection Act.
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TIq~. HONORABLE CITY COL~’CIL
April 8, 2008
Page 3
RE:Summary, of State Propositions 98 and 99 Pertaining to Eminent Domain and
Regulatory TaMngs
Proposition 99 would prohibit a redevelopment agency,, the State or any local government
from using eminent domain to acquire an owner-occupied, single family residence and resell it to
a private person. The initiative would not apply it- the government acquisition was to abate a
nuisance, protect public health and safety from building, zoning or other code violations, prevent
serious repeated criminal activity, respond to an emergency, or remediate hazardous materials.
The League and other local municipalities are supporting Proposition 99.
The passage of Proposition 99 would void the Jarvis sponsored Proposition 98, if more
voters support Proposition 99. If both measures pass, but Proposition 98 gets more votes, both
measures would be in effect.
Respectfully submitted,
\
CARA SILVER "J
Senior Asst. City Attorney,
CES :rob
cc:Frank Behest, City Manager
Emily Harrison, Assistant City Manager
Vale~e Fong, Utilities Director
Steve Emstie, Planning Director
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NOT YET APPROVED
ATTACHMENT
RESOLUTION NO.
RESOLUTION OF THE COUNCIL OF THE CITY OF
PALO ALTO OPPOSING PROPOSITION 98
WHEREAS, a constitutional amendment ballot measure, Proposition 98, will appear
on California’s June 2008 ballot; and
WHEREAS, Proposition 98 proponents want voters to believe the initiative is about
eminent domain, but in fact the measure contains other provisions and legally, flawed language
which will threaten development of public water projects, inhibit local land use planning and
impair the City’s ability to protect the environment; and
WHEREAS, the majority of the funding to qualify this measure comes from apartment
and mobile home park owners who are using Proposition 98 as a subterfuge to convince voters
into abolishing rent control and other renter protections; and
WHEREAS, provisions in the initiative would also preclude the use of eminent domain
to acquire land or water to develop public water projects that are needed to provide our
residents, businesses, farmers and economy with a reliable and safe supply of water; and
WHEREAS, Proposition 98 is opposed by the Association of California Water
Agencies and the Western Growers Association, who warn the initiative will impair water
projects to protect water quality and supply; and
WHEREAS, language in the initiative will also prohibit the passage of regulations,
ordinances, land use and other zoning laws that enable local governments to plan and protect
communities; and
WHEREAS, the California Police Chiefs Association opposes the measure because it
threatens their ability to keep communities and the public safe; and
WHEREAS, leading environmental groups warn provisions in the measure would
impair our ability to enact environmental protections such as laws that control greenhouse gas
emissions, preserve open space, protect coastal areas, and regulate development; and
WHEREAS, the "No on Proposition 98" campaign members include the League of
California Cities, California State Association of Counties, League of California Homeowners,
California League of Conservation Voters, California Alliance for Retired Americans and other
leading state and local associations.
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NOT YET APPROVED
NOW., THEREFORE, the Council of the City of Palo Alto does resolve as follows:
SECTION 1. The Council by adopting this resolution does hereby oppose Proposition
98 on the June 2008 ballot.
SECTION 2. The Council hereby authorizes the use of its name by the "No on
Proposition 98" campaign in opposition to Proposition 98. Staff is hereby directed to fax a
copy of this adopted resolution to 916.442.3510 and to distribute it to local media.
INTRODUCED AND PASSED:
A,f~ES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST: -APPROVED:
City Clerk
APPROVED AS TO FORM:
Mayor
City Attorney City Manager
Director of Administrative
Services
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NOT YET APPROVED
RESOLUTION NO.
RESOLUTION OF TH~ COUNCIL OF THE CITY OF
PALO ALTO SUPPORTING PROPOSITION 99
WHEREAS, in June of 2005 the U.S. Supreme Court ruled in Kelo v. Nmv London that
government could take a home through eminent domain to give to a private developer; and
WHEREAS, since that decision more than 40 states have reformed their eminent
domain laws; and
WHEREAS, California has failed to place a prohibition on the use of eminent domain
to take homes for private development; and
WHEREAS, Proposition 99, which will be on the June 2008 ballot, will prohibit
government from using eminent domain to take an owner-occupied home to transfer to another
private party,; and
WHEREAS, the protections in Proposition 99 directly address the issues in the Kelo
decision and the measure does not contain any, unrelated provisions that will result in
unintended, harmful conse~iuences for California; and
WHEREAS, the League of California Homeowners supports this measure because it
will provide ironclad protections for California homeowners; and
WHEREAS, the "Yes on Proposition 99" campaign is represented by a broad based
coalition, including the League of California Cities, California States Association of Counties,
League of California Homeowners, California League of Conservation Voters, California
Alliance for Retired Americans and other leading state and local associations who support
Proposition 99.
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NOT YET APPROVED
NOW, THEREFORE, the Council of the City of Palo Alto does resolve as follows:
SECTION 1. The Council by adopting this resolution does hereby support Proposition
99 on the June 2008 ballot.
SECTION 2. The Council hereby authorizes the use of its name by the "Yes on
Proposition 99" campaign. Staff is hereby directed to fax a copy of this adopted resolution to
916.442.3510 and to distribute it to local media.
INTRODUCED AND PASSED:
AYES:
NOES:
ABSENT:
AB S TENTIONS:
ATTEST:APPROVED:
City Clerk
APPROVED AS TO FORM:
Mayor
City Attorney City Manager
Director of Administrative
Services
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