2008 Eminent Domain Year in Review
2008 Eminent Domain Year in Review
By Rick E. Rayl and Michael G. Thornton
January 29, 2009
When we look back on what happened in eminent domain in 2008, the most striking thing may be how little happened. After three years of living with the aftermath of the Kelo decision, in 2008 things returned more to "normal." On the legislative front, not a single important piece of eminent domain legislation was enacted. At the ballot, the dramatic changes proposed by Proposition 98 were rejected by voters, while the moderate reforms promised by Proposition 99 curried the voters' favor. In the courts, the list of published eminent domain decisions was relatively small - and those opinions that were published tended to shape or clarify some of the broader cases from the past couple of years, rather than create sweeping changes in the law.
All of that said, a few notable things did occur, and what follows is the Nossaman Eminent Domain and Valuation Practice Group's 2008 Year in Review.
The Ballot
Following the Supreme Court's 2005 decision in Kelo v. City of New London, 545 U.S. 469 (2005), California saw perhaps the largest wave of proposed eminent domain reforms in history. By mid-2008, however, the post-Kelo momentum behind eminent domain reform had stalled. This likely resulted from the June 2008 passage of Proposition 99. Proposition 99 was placed on the ballot to compete with the more ambitious reforms proposed in Proposition 98 (in large part, a successor to 2006's failed Proposition 90). Proposition 99 passed, and while it may not in fact effect any significant reform, it may be that the mere passage of "eminent domain reform" was enough to divert the public's attention.
Proposition 99 was crafted as a counterproposal to Proposition 98. It was promoted as eliminating the government's ability to condemn residential property for the purpose of turning the property over to a private developer. Its goals were far more modest than those of Proposition 98; its substantive provisions focused solely on protecting owner-occupied homes. The measure contained a provision which stated that if both Propositions 98 and 99 passed, Proposition 99 would trump Proposition 98 as long as it received more votes. This "kill" provision provides some insight into the purpose behind Proposition 99. Indeed, some have opined that if it accomplished nothing more than helping to defeat Proposition 98, its proponents would view it as a success.
Since Proposition 99 was approved by California's voters, it appears the push for the more radical "Proposition 90/98"-type reforms have stalled. We are not aware of any further Propositions being circulated for signatures in California regarding eminent domain. CLICK HERE TO CONTINUE
