United States: What Passage Of Proposition 99 Means To The California Homeowner

Last Updated: July 20 2009
Article by Victor Pappalardo

When Proposition 99 was passed in June 2008, supporters argued that it would assure the a situation like that in Kelo v. City of New London, Connecticut 545 U.S. 469 (2005) would not happen in California. Opponents argued that it would not change the law in any meaningful way. In the end both sides were partly right, in part, because a lot of the overheated rhetoric from property rights groups that condemned Kelo had little basis in the reality of governmental takings.

In Kelo, several homeowners had objected to the City of New London, Connecticut's attempt to acquire their homes through the condemnation process. Even though the nine homes in question were not blighted, the City desired the properties for the purpose of bringing a private business to the area for the purpose of local economic revitalization. The U.S. Supreme Court upheld the City's right to take these properties holding that a local government's promotion of economic development (including condemnation of land for private uses) was a traditional and long-accepted governmental function, and there was, in the context of condemnations, no principled way of distinguishing this function from other public purposes.

In Kelo, the Court did not overturn its longstanding "public use requirement", which holds that a public agency cannot not take a property from one private party and give it to another private party for purely individual benefit. The Court recognized that use of the parcels by the private developer would not "open the condemned land – at least not in its entirety – to use by the general public", but held that such a literal reading of the "public use requirement" was not required.1. In Kelo, the City had formulated an economic development plan to "provide appreciable benefits to the community, including...new jobs and increased tax revenue."2. According to the majority opinion, authored by Justice Stevens:

Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate...to resolve the challenges of the individual owners not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged...satisfy the public use requirement of the Fifth Amendment.3.

As such, the Court found the taking in Kelo to be for a public purpose, and thus permitted under the Fifth Amendment of the U.S. Constitution.

While politically charged, the Court's decision appeared to be a reaffirmation of long held legal principles (albeit in a rather extreme circumstance). In some circumstances, local governments and redevelopment agencies have found it necessary to condemn private property, including homes, in order to promote economic revitalization. Usually, such condemnations have been of commercial properties or extremely blighted homes, but clearly exceptions like those in New London did, and could, occur. In any event, however, the court recognized that economic revitalization may sometimes require public agencies to condemn property for the purpose of transferring it to private parties. According to the court:

Petitioners contend that using eminent domain for economic development impermissibly blurs the boundary between public and private takings. Again, our cases foreclose this objection. Quite simply, the government's pursuit of a public purpose will often benefit individual private parties... 'We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.'4.

However, the fact that Kelo led to the condemnation of homes for private industry struck many people as an abuse of governmental power. Possibly anticipating such a reaction, Justice Stevens in his opinion, made clear that states could individually tighten these restrictions, stating:

(i) In affirming the City's authority to take petitioners' properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation. We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.5.

As a result, property rights groups all over the nation began pushing ballot initiatives limiting governmental eminent domain authority with the stated purpose of preventing a similar outcome in the individual states. However, many of these ballot initiatives attempted to put a myriad of additional restrictions on governmental rights to restrict property rights, from local government rights to impose rent control to broader rights to impose environmental regulation. California voters rejected two such broad initiatives, Propositions 90 and Proposition 98.

Proposition 99, which was sponsored in part by the California League of Cities, was tailored to address the actual concern created by Kelo, i.e. taking of a home for the benefit of a private party as well as to undermine support for Proposition 98. Specifically, Proposition 99 amended Section 19 of the California Constitution by adding additional sections (b), (c) & (d). These sections read as follows:

(b) 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.

(c) Subdivision (b) of this section does not apply 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.

(d) Subdivision (b) of this section does not apply when State or local government exercises the power of eminent domain for the purpose of acquiring private property for a public work or improvement.6.

These provisions would prohibit state and local governments from taking an owner-occupied dwelling (including a condominium) in which the owner has resided for a year or longer, for the purpose of transferring it to another private party such as a person, business, or association absent urgent, public safety-related, circumstances. In other words, no individual's home can be taken in California's unless that person has lived in the home for less than one year or such a taking will "protect public health and safety, prevent serious, repeated criminal activity, assist in the response to an emergency or remedy environmental condemnation."

In California, the vast majority of takings for economic development purposes take place in the context of redevelopment. However, prior to the enactment of Proposition 99, California redevelopment law already provided if the taking was not located in a "predominantly urbanized", physically and economically blighted area then a redevelopment agency had no authority to take the property. Moreover, such a taking required there to be a logical relationship between the redevelopment and alleviation of the blighted conditions.7. As a result, while Proposition 99 made clear that an "owner occupied residence" could not be taken for private use, in fact, prior to its passage few homes in non-blighted areas were subject to condemnation.

However, anti-Proposition 99 activists also argued that Proposition 99 contained a "loophole" that essentially nullified any effect it may have on existing law:

when the government's purpose is to convey property to another private party...[g]overnment can always claim that its purpose is something else. For example, under the Prop 99 'purpose' test, a government could change the zoning of an area – from residential to commercial, for example – and then, with the alleged purpose of making the properties in the area meet the new zoning requirements, use eminent domain to transfer homes to private developers. Courts give great deference to a government's claim of purpose, so Prop 99 would be of little use to homeowners whose cities are determined to take their properties.8.

This analysis, however, completely ignores the fact that government cannot simply condemn a property simply because it does not conform to local zoning.9. Failure to conform to local zoning might be one finding in an argument for blight, but it is not, by itself, a reason to condemn a home. Condemnation requires a myriad of findings, not the least of which is that the agency has to identify the use to which the property is to be put. If there was some nefarious plan to transfer the properties to a private developer post condemnation, such an action would run afoul of the plain language of Proposition 99. It would also run afoul of numerous other laws too, including the responsibility of local government to do its business in public.


Anti-Proposition 99 activists were correct in arguing that it would not change much in terms of government eminent domain practice. On the other hand, it appears that those same activists overplayed the actual effect of Kelo in order to convince the public to approve more wide ranging restrictions on governmental regulatory authority. In fact, the passage of Proposition 99 actually appears to have remedied the perceived unfairness of the Kelo outcome. And though Kelo was never the great threat that the property rights groups made it out to be, any threat that did exist seems to have vanished with its passage.


1. Kelo v. City of New London 545 U.S. 469, 478 (2005).

2. Id. at 483.

3. Id. at 484.

4. Id. at 485-486 (2005), quoting Berman v. Parker, 348 U.S. 26, 34 (1954).

5. Kelo 545 U.S. at 489.

6. Proposition 99 also added a Section (e) which created some new definitions in Section 19 of the California Constitution.

7. California Health and Safety Code Section 33030(b)(1).

8. Analysis of Proposition 99 by the Institute for Justice, a private non-profit that represented Suzette Kelo before the U.S. Supreme Court.

9. See Graber v. City of Upland 99 Cal.App. 4th 424 (2002).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions