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Property Rights Issues on the 2006 BallotOctober 17, 2006Background Property rights questions are on more ballots than any other single issue this year. Twelve states will consider property rights on November 7, and Louisiana voters already weighed in on September 30 in the primary election. The category of “property rights” encompasses two distinct issues in this year’s crop of ballot measures: eminent domain and regulatory takings. The eminent domain measures are a direct response to the U.S. Supreme Court’s June 23, 2005 decision in Kelo v. New London. The opinion upheld eminent domain for economic development as a “public use” under certain conditions, but also specified that “nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.” More than half the states have addressed eminent domain since June 2005. The regulatory takings measures are generally more controversial than the eminent domain measures. A regulatory taking occurs when a government restriction on property use – for instance, a zoning restriction – that may be intended to prevent development in the interest of protecting the environment or natural resources removes all economically viable use of the property. Compensation generally is not paid by the government for reduced property value that falls short of a taking. What’s on the ballot this year? Eight states will consider eminent domain questions in November, and Louisiana voters already approved an eminent domain measure in their September 30 primary. One state will consider a regulatory takings measure. Three states will consider initiative measures that combine both subjects in a single initiative.
a) Type: L = legislative referendum I = citizen-initiated b) CA = constitutional amendment S = statutory c) on the primary ballot (September 30, 2006) Eminent Domain In basic terms, the eminent domain measures on the ballot prohibit government from taking private property for economic development purposes. Taking property for public use– building highways or schools, for instance – would still be permitted under these measures. Five of the eminent domain measures on the ballot this November were referred by legislatures: Florida, Georgia, Michigan, New Hampshire and South Carolina. Louisiana’s primary ballot question was also a legislative referendum. The other three questions addressing eminent domain are initiatives, and are on the ballot in Nevada, North Dakota and Oregon. Note that none of these states had legislative sessions in 2006, and two of the three (Nevada and North Dakota) had already adjourned when the Supreme Court ruling was issued in 2005. This left the legislatures in these states unable to respond in time to place questions on the 2006 ballot, and may explain why citizens chose the initiative route. Regulatory Takings The initiatives dealing with regulatory takings allow citizens whose property value is decreased by government regulation to file a claim for government compensation for the reduced value of their property. In most proposals, there is a waiver provision that allows government to waive the regulation at issue rather than provide monetary compensation. Regulatory takings made its first appearance on the ballot in the mid - 1990s, but first passed in Oregon in 2004 as Measure 37. The provisions of Measure 37 are currently in effect in Oregon, and more than 2,400 claims have been filed totaling more than $5.6 billion in requests for compensation. However, no claim to date has resulted in compensation – in all cases, regulations have been waived. The only state with an initiative addressing only regulatory takings this year is Washington. See below for a list of the states with measures combining regulatory takings and eminent domain. A Combination Three states – Arizona, California and Idaho – have initiatives that combine eminent domain and regulatory takings in a single question. All three are similar, with one notable exception – California’s proposal does not include a provision that would allow government to waive a land use regulation in lieu of paying monetary compensation. A fourth state – Montana – had a combined eminent domain/regulatory takings measure on the ballot, but it has been blocked by the courts on the grounds that there was fraud in the signature-gathering process. An appeal in the state’s supreme court is pending. Also, Nevada’s eminent domain initiative was originally proposed as a combined eminent domain/regulatory takings question, but the state supreme court found that the combined question violated the state’s single subject rule for initiatives. Rather than blocking the question from the ballot, the court removed the regulatory takings portion of the question and left only the eminent domain portion on the ballot. How does this compare to previous years?
Regulatory Takings In 1994, a popular referendum on regulatory takings appeared on the Arizona ballot. In that election, voters rejected a law that had been passed by the legislature in 1992. In 1995, the Washington Legislature passed a law very similar to this year's I-933, but opponents qualified a popular referendum to the ballot, and voters rejected the legislature's property rights law. In 2000, Oregon voters approved Measure 7, a regulatory takings initiative. However, the Oregon Supreme Court voided the measure in October 2002 on the grounds that it violated Oregon's "separate vote" requirement. This constitutional provision states that an initiative may contain only a single amendment. In 2004, Oregon voters approved Measure 37. Eminent Domain This is the first year that measures broadly limiting the uses of eminent domain have appeared on the ballot. Narrower issues related to eminent domain have appeared on the ballot before, though. In 1990, California voters rejected an initiative dealing with timber harvesting practices that would have suspended the state’s eminent domain power over certain timberlands for 10 years. Also in 1990, Oklahoma voters approved a question changing the manner in which compensation is determined for property taken by eminent domain. In 1992, Colorado voters approved a measure creating the “Great Outdoors Colorado” program for parks and recreation. It prohibited the acquisition of land by eminent domain for purposes of the program. In 2002, Alaska voters approved an initiative creating a Gas Pipeline Development Authority, and the initiative granted the new authority with the power of eminent domain. Also in 2002, Maryland voters approved a measure allowing the Montgomery County City Council to appoint a licensed and certified real estate appraiser to estimate the fair market value of properties subject to taking under eminent domain. Links to NCSL Information State Legislative Response to Kelo Presentation -- Eminent Domain: Not in my Front Yard Blog Entry: The Thicket at State Legislatures Links to Outside Sources of Information Note: The inclusion of these links does not constitute an endorsement by NCSL of the positions that may be taken by these organizations. The links are provided for informational purposes only.
Chief Proponents & Opponents of Specific Measures Arizona HOPE – proponents of Arizona’s Proposition 207 Protecting Arizona Taxpayers Coalition – opponents of Arizona’s Proposition 207 Protect Our Homes Coalition -- proponents of California’s Proposition 90 Californians Against the Taxpayer Trap – opponents of California’s Proposition 90 This House is My Home – proponents of Idaho’s Proposition 2 Neighbors Protecting Idaho – opponents of Idaho’s Proposition 2 Washington Farm Bureau – proponents of Washington’s I-933 No on 933 – opponents of Washington’s I-933 Other Sites of Interest Castle Coalition – sponsored by the Institute for Justice Measure 37 Home Page – Oregon Dept. of Land Conservation and Development Takings Initiatives Accountability Project – sponsored by the Center for Public Integrity The Campaign Against Land Use Planning – sponsored by New West Contacts for More Information Larry Morandi, NCSL contact for property rights information Jennie Drage Bowser, NCSL contact for ballot measures information |
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