In the June 3, 2008 Statewide Direct Primary Election, California voters approved Proposition 99 (officially known as the “Homeowners and Private Property Protection Act”) and rejected the more far reaching provisions of the competing Proposition 98. Both propositions were intended to address perceived abuses in the eminent domain process whereby a public entity can take private property for a public use upon payment of just compensation to the owner.
The stated intent and purpose of Proposition 99 is to:
- Protect homes from eminent domain abuse;
- Prohibit government agencies from using eminent domain to take an owner-occupied home and transfer it to another private party;
- Respond to the recent U.S. Supreme Court decision of Kelo v. City of New London in which the Court upheld the taking of a private residence and transferring it to a private party for economic development purposes;
- Provide a mechanism to compensate property owners when property is taken or damaged by State or local government but without affecting legislative and administrative actions taken to protect the public health, safety and welfare.
Given this intent and purpose, Proposition 99 does the following:
- Amends the State Constitution to expressly provide that: “The State and local governments are prohibited from acquiring by eminent domain an owner-occupied residence for the purpose of conveying it to a private person.”
This prohibition does not apply to the following:
- When State or local government exercises the power of eminent domain for the purpose of protecting public health and safety, preventing serious, repeated criminal activity, responding to an emergency, or remedying environmental contamination that poses a threat to public health and safety; or
- When State or local government exercises the power of eminent domain for a public work or improvement.
As used in Proposition 99:
- The prohibition on the conveyance of private property refers to a transfer by sale, lease, gift, franchise or otherwise;
- Local government is broadly defined to include a comprehensive list of most types of governmental agencies;
- Owner-occupied residences means a single residence, condominium or townhouses that is the owner’s principal place of residence for at least one year prior to the government’s initial written offer to purchase the property;
- Public work or improvement is broadly defined to include a wide variety of uses and also includes private uses incidental to, or necessary for, the public work or improvement.
The terms of Proposition 99 are not intended to change existing constitutional definitions or restrict the power of eminent domain except as provided.
The terms of Proposition 99 do not apply if the initial offer to acquire the property was made prior to the date Proposition 99 becomes effective and a resolution of necessity to condemn the property is adopted within 180 days.
Proposition 99 is not likely to have a significant impact on most public agencies. Proposition 99 does not impose any new procedural requirements. Proposition 99 does not limit the vast majority of eminent domain actions involving acquisition for a traditional public use such as a roadway or school. However, Proposition 99 may affect the relatively rare situation where a public agency attempts to condemn a private residence to transfer it to a private party unless the acquisition comes within one of the broadly drafted exceptions.