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<br />LESSONS
<br />As communities near build out. planning and
<br />regulatory priorities change significantly.
<br />While the nature of these priorities is as var-
<br />ied as the communities~!nd regions them-
<br />selves, they often face a 'common set of
<br />issues, including the need to accommodate
<br />development on smaller spaces, ensuring that
<br />new development fits neighborhood context,
<br />and addressing nonconforming develop.
<br />ments. These regulations should begin with a
<br />careful calibration of existing development
<br />with the new regulations or a diagnosis of the
<br />existing regulations that ties new develop.
<br />ment to updated planning policies.
<br />
<br />e.~~~~l30~l~t~NIA
<br />
<br />Iii EMINENT DOMAIN INmATIVE
<br />By David Morley
<br />
<br />An initiative to amend California's constitution
<br />to severely restrict eminent domain will
<br />appear on the November ballot. Proponents of
<br />the "Anderson Initiative." named for California
<br />homeowner Anita S. Anderson, gathered
<br />approximately one million signatures for the
<br />proposed amendment. eclipsing similar pro-
<br />posals backed by Republican California state
<br />senator Tom McClintock.
<br />According to the Califomia Redevelopment
<br />Association, a single individual from New York
<br />provided $1.5 million to hire a signature.collect-
<br />ing firm and retain a campaign consultant for.
<br />the proposed measure. On July 13, Capitol
<br />Weekly identified this individual as multimillion-
<br />aire developer Howard Rich. Weekly reporter
<br />Shane Goldmacher claims Rich is currently offer-
<br />ing financial support to eminent domain initia-
<br />tives in seven other states using nonprofit inter-
<br />mediaries. such as the Fund for Democracy, to
<br />obscure his influence.
<br />The Anderson Initiative is one of many
<br />state and local initiatives attempting to repli.
<br />cate the success of Oregon's Measure 37, a
<br />2004 amendment to that state's constitution
<br />allowing individual landowners to claim com-
<br />pensation for regulatory takings. So far,
<br />results have been mixed. In June, a coalition
<br />of groups representing industry, local govern-
<br />ment, and environmental issues successfully
<br />defeated a MeaSure 37 clone in Napa County.
<br />The current wave of proposed measures
<br />is gaining support following the U.S. Supreme
<br />Court's 2005 decision in Ke/o v. City of New
<br />
<br />London [125 S. Ct. 2655 Oune 23, 2005)]. The
<br />landmark ruling, which upheld eminent
<br />domain for economic development. has ener.
<br />gized radical property rights organizations.
<br />Subsequent media coverage of the case has
<br />gathered the attention of a broad constitu-
<br />ency of private property owners who support
<br />eminent domain reform.
<br />In response to Kelo, California's pend-
<br />ing measure is even more restrictive than
<br />Measure 37. The Anderson Initiative bars
<br />eminent domain unless the property taken
<br />will be owned by a governmental entity.
<br />Consequently, redevelopment agencies
<br />could not use eminent domain to transfer
<br />property to private developers.
<br />like Measure 37,the proposed amend.
<br />mentconsiders property to be damagedwhen
<br />regulatory actions not taken to protect. public
<br />health and safety result in economic loss.
<br />Examples of economic loss offered by the
<br />measure include downzoning, property access
<br />elimination, and air space usage.
<br />Perhaps most significantly, the Anderson
<br />Initiative would void unpublished eminent
<br />domain court decisions, leaving resolved cases
<br />open to challenge. Taxpayers would then be
<br />forced to foot the bill for legal fees and the
<br />increased costs of property acquisition and pub-
<br />lic works projects. If passed, the amendment
<br />could only be changed by another initiative.
<br />Proponents view the measure as a pop-
<br />ulist rebellion against eminent domain abuse.
<br />"It is time to end the faction between local
<br />governments and special interests that sacri-
<br />fice the property rights of the average citizen
<br />in order to line the coffers of government and
<br />the pockets of the powerful," says Republican
<br />legislator Mimi Walters. Walters. who identi-
<br />fies herself as honorary chair of the Protect
<br />Our Homes Coalition, is the measure's chief
<br />sponsor in the California Assembly.
<br />Meanwhile. a coalition of planners, busi-
<br />ness groups, environmentalists, and local
<br />governments has formed to block the initia-
<br />tive. League of California Cities executive
<br />director Chris McKenzie warns that the
<br />amendment would "significantly erode envi-
<br />ronmental protections, limit the ability to
<br />restrict sprawl and open space, and signifi.-
<br />cantly increase the cost of building all sorts of
<br />public works projects like schools and roads."
<br />Representatives of the law firm Nossaman
<br />Guthner I<nox & Elliott LLP claim the Anderson
<br />Initiative represents post-Kelo hostility toward
<br />governmental interference with property rights but
<br />go on to caution that in California only three sin-
<br />
<br />gte-family homes were acquired for redevelop-
<br />ment through eminent domain in 2005. This sta-
<br />tistic may undercut political strategist Kevin
<br />Spillane's assertion that most "victims of eminent
<br />domain abuse are minorities. immigrants. work.
<br />ing-class people, and mom-and.pop businesses."
<br />After learning the measure had qualified
<br />for the November ballot, a prominent member of
<br />the business community disagreed openly with
<br />Spillane's comments. "On behalf of California's
<br />20 million minorities, we oppose the Anderson
<br />Initiative as anti-poor, anti-growth, anti-small
<br />business, and as crushing the future dreams of
<br />our state's aspirations to once again be a golden
<br />state," stated Latin Business Association direc-
<br />tor Jorge Corralejo in a release issued by the
<br />Greenlining Institute. a Berkeley public policy
<br />research and advocacy center.
<br />As Californians look forward to register-
<br />ing their opinionS in the November election,
<br />eminent domain rumblings continue nation-
<br />wide. To access up-to-date information on
<br />eminent domain reform in your state and
<br />. around the country, vis.it the American
<br />Planning Association's eminent domain legis-
<br />lation and policy page at www.planning.
<br />org/legislation / em inentdomai n /i nd ex.htm.
<br />David Morl~y is a researcher with th~ Ameri~
<br />can Planning Association.
<br />
<br />. "'
<br />CoveI!P~~to:' ~esi!W conc~pt by tisa Bartcir.:' '.
<br />, <, - ' ~,.t
<br />
<br />VOL. 23, NO.8
<br />Zoning Practice is a monthly publication of the
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<br />ZONING PRACTICE 8.06
<br />AMERICAN PLANNING ASSOCIATION I pal} 7
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