Voters Reject Napa Property Rights Measure; State Measure on the Way

Napa County’s Measure A – a local clone of Oregon’s Measure 37 – was defeated at the polls on Tuesday. The Napa Valley Register writes:

Property rights advocates failed to convince Napa County voters they need to take control of land use regulations away from the board of supervisors. Measure A, the Fair Payment for Public Benefit Act, promoted by the Napa Valley Land Stewards Alliance, garnered only 36.4 percent of the primary election vote. The measure would have required Napa County to pay private landowners for any loss of property values caused by new land use laws or to waive the regulations that caused the diminution.

What a bogus characterization in the first paragraph…Measure A would hardly take away control of land use regulations from the County board. Rather, it would have simply forced them to take into account the costs and benefits of any future land use regulations. Anyway, there may be a silver lining. The defeat of this measure could lead to increased attention and energy among property rights advocates to push for the Protect Our Homes initiative, a “Kelo-Plus” measure that will take a step further than Oregon’s Measure 37 by incorporating eminent domain reform alongside action to address regulatory takings. From the San Francisco Chronicle:

Property-rights advocates who failed to persuade voters to limit Napa County’s land-use authority turned their hopes Wednesday to a similar initiative aimed for the statewide ballot in November. The “Protect Our Homes Act” — for which backers submitted 1 million signatures — would prohibit state and local government from taking property from one private entity and giving it to another. It is a response to a U.S. Supreme Court ruling last year that sanctioned such takings using eminent domain. But the proposed California initiative would also require government agencies to compensate property owners when new rules concerning matters other than public health or safety have the effect of reducing a property’s value. That was the essence of Measure A, the “Fair Payment for Public Benefit Act,” which Napa County voters rejected Tuesday by 63.6 percent to 36.4 percent. “I will be supporting it (the statewide effort). Property owners need some relief from regulatory takings,” said George Bachich, a leader of the Napa Valley Land Stewards Alliance, which sponsored Measure A but has not taken a position on the statewide measure. Kevin Spillane, a Sacramento political consultant helping run the Protect Our Homes campaign, said the nonpartisan measure seeks to protect the rights of citizens against developers and big-box chain stores that have colluded with governments to abuse eminent domain in the name of economic development. “This is about immigrants, minorities and small business owners,” he said. The authors of the measure included the portion about regulatory takings because government officials sometimes take actions to devalue properties they want to acquire, he said. . . . . “We see this initiative as an attempt to drive a stake into the heart of local planning and environmental regulations,” said Tom Adams, president of the California League of Conservation Voters’ board of directors. Adams said the idea of prohibiting government seizure of someone’s land so a developer can use it is popular and is being used to sell the regulatory takings aspect of the initiative, which he said is more significant. “It is a wolf in sheep’s clothing,” said Adams, an environmental lawyer. “It would make it as a practical matter impossible to protect the coasts, forests, endangered species, habitat.” . . . . Howie Rich, a New York City real estate investor whose Fund for Democracy is backing similar measures in several other states, including Nevada and Washington, provided $1.5 million in seed money, and on Wednesday he was in Santa Monica fundraising for the California effort. “There will be significant support — financial support,” said Rich in a telephone interview.

I’d be remiss if I didn’t challenge the contention by Tom Adams that regulatory takings element would make it “impossible” to protect the environment. Two key points here. First, nothing in the measure would prevent environmental protection…it would prevent environmental protection efforts that are “free” to the public and paid for by a minority of landowners, i.e., in which individual property owners bear the costs of providing a public benefit by having their property rights severely restricted. If the public wants to protect the environment, they’ll just need to find a way to pay for the land that they want to protect. The enviros that scream about regulatory takings measures know full well that there’s no such thing as a free lunch, but they’ve effectively been getting one via environmental regulations like the Endangered Species Act that penalize landowners with habitat on their property. The reason enviros are so passionate about this issue is that they know that the public will be much more skeptical of environmental regulations if they come with a real price tag. Second point…I’d argue that the perverse incentive that the ESA provides for landowners to destroy habitat before regulators discover it makes it much more difficult to protect species than it would if landowners were compensated for keeping their properties restricted in their use. Some landowners, knowing that they won’t be able to do anything with their property under ESA if the endangered species habitat is discovered, have opted to just wipe out the habitat. Compensation for property use restrictions would go a long way to removing this perverse incentive. For more on Measure 37 and regulatory takings, check out my study and this op-ed. Also, the Protect Our Homes measure website is here: