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Property Rights Proponents Taking Their Case Right To Voters

At last, a property rights ballot initiative is making the rounds in California. But the initiative begs the question: Is there still a property rights movement in this state? Maybe. It is unlikely that any sweeping pro-property rights action will come out of the Legislature or out of most California courts, least of all the left-leaning Ninth U.S. Circuit Court of Appeals. So, if California property rights advocates have much hope at all, they are likely to pin it on a ballot initiative. In mid-May, the attorney general and the secretary of state gave the green light to San Luis Obispo land-use lawyer William Walter to gather signatures to place "the California Property Rights Initiative," a constitutional amendment, on the ballot in November 2004. Placing any statewide initiative on the ballot is a daunting task requiring the collection of about 600,000 valid signatures. The effort usually requires paid signature-gatherers. Walter is an experienced land-use lawyer; he recently has represented several landowners in "magic subdivision" cases, which seek to validate the existence of parcels created prior to the passage of the first Subdivision Map Act in 1893 (see County of San Luis Obispo v. Superior Court, CP&DR Legal Digest, August 2001 and Virgin v. County of San Luis Obispo, CP&DR Legal Digest, March 2000). But Walter is not a big name in the field along the lines of Ronald Zumbrun, Michael Berger, or the Pacific Legal Foundation. He indicates that the current wording of the initiative is a kind of trial balloon. He says he may revise and resubmit, but "no one will take you seriously" unless you have an actual proposal in circulation. Walter's initiative is fairly simple on its face. In all of his public communications, including an interview with CP&DR, Walter contends that he is simply seeking to "level the playing field," rather than create more lawsuits. Having worked as a land-use lawyer for almost 30 years, he has concluded that California has by far the most oppressive property regulations and the least sympathetic environment for property rights of any state in the union. In a letter to the attorney general, Walter wrote: "The goal is not to foster litigation but to reform the conduct of California's government entities." He asserted that "legislative solutions have been conspicuously lacking to provide mechanisms to modify the behavior of government agencies" and concluded that "it is anticipated that through pro-active training (e.g. continuing education) of government entities about the standards of reasonable, fair, and proportionate conduct in the exercise of their duties, few such lawsuits would arise." Walter's initiative would not, however, change the constitution to require better continuing education. Rather, it would amend the definitions contained in Article 1, Section 19, of the California Constitution the "declaration of rights" dealing with property rights to more explicitly include onerous regulation as the basis of a claim that property has been damaged by, or taken for, public use. Definitions are not precise. Walter acknowledged that, at least at this point, his goal is to gauge political and financial support for an initiative. He may well revise the initiative and resubmit it later. If passed, the initiative may or may not create a flood of litigation. But it would certainly make the takings standard even murkier. During the past 25 years, property rights advocates have succeeded in swinging the legal pendulum back in their direction, but they have failed to secure a hard and fast standard for when a taking occurs and when it does not. In a recent commentary in the Los Angeles Daily Journal, pro-regulation advocates John Echeverria and Bill Higgins claimed that the takings test now has 13 factors that are so complicated and contradictory that they "do not supply a meaningful rule of law." Walter's initiative requires compensation in certain situations but is not specific. The bigger question politically is whether a property rights movement can ever gain much traction in California, no matter how well funded or zealous its "true believers" might be. In one sense, you would think so. There is still a cowboy mentality in many parts of the state, and the Libertarian Party is stronger here than in most other states. On the other hand, recent political and judicial trends suggest that the cowboys will be eating the regulators' dust for the foreseeable future. For years, legislation boosting property rights has regularly stalled in committee, and that roadblock is unlikely to fall soon with the Democrats firmly in control of Sacramento. Recent court rulings involving California property rights have not gone well for the landowners. Despite nearly two decades of litigation, property owners from Lake Tahoe one of the most highly regulated parts of the country have never won a solid legal victory. Most recently, in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the U.S. Supreme Court rejected yet another property rights claim from Lake Tahoe, this one involving a 1980s moratorium (see CP&DR Legal Digest, March 2002). Also, prominent Sacramento developer Angelo Tsakapoulos suffered a narrow loss before the high court. A divided court upheld a lower court's ruling in Borden Ranch Partnership v. United States Army Corps of Engineers, a case involving a large fine for Tsakapoulos for "deep ripping" a wetlands, apparently in violation of the federal Clean Water Act (see CP&DR Legal Digest, January 2003). Perhaps most surprisingly, a local, pro-property rights ballot initiative in a seemingly sympathetic county went down to defeat last year. Voters in rural Nevada County defeated Measure D by 57% to 43% last November, even though Measure D's supporters outspent the opponents 10 to 1 in a county that has a long history of defending property rights. It could be argued that all of these pro-regulation victories have been narrow and could easily have gone the other way. Tsakapoulos lost his case before the Supreme Court on a 4-4 tie, with Justice Anthony Kennedy, a Sacramento native and friend of Tsakapoulos, absent. Even as Measure D was defeated in Nevada County, its supporters defeated its opponents in individual races for the county Board of Supervisors. And the California attorney general's office has narrowly escaped defeat in Lake Tahoe on any number of occasions. But the overall trend is that the pro-regulation forces almost always find a way to win in California, even if that victory is close. The only current exception to the rule is the Marine Forests Society case, currently pending before the California Supreme Court, in which property rights advocates have challenged the constitutionality of the appointments system for Coastal Commissioners. The big victory there is not just that a lower court found the system unconstitutional, but that the Supreme Court is examining whether to apply the ruling retroactively (see CP&DR Legal Digest, May 2003). That move threatens to overturn the entire history of Coastal Commission rulings. But the Coastal Commission is always an anomaly in California land-use regulation unusually aggressive and polarizing. In that sense, the commission is an easier target than most other regulatory agencies. On balance, California remains a highly regulated state that is politically hostile to property rights. That makes William Walter's initiative all the more important legally to property rights advocates, and all the more difficult as a political objective.
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