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Porn shops, property wrongs and Prop. 90

San Gabriel Valley Tribune
October 29, 2006
Doug Kendall

IT'S been billed as a way to keep innocent homeowners safe from the nameless, faceless bureaucrats who would condemn their houses and property. It's Proposition 90, and if it passes Nov. 7, Californians will be shocked and dismayed when they realize that the biggest beneficiaries will be developers, porn peddlers and trial lawyers.

Tucked amid the measure's paragraphs that limit the condemnation power lies a requirement that governments - in other words, taxpayers - compensate developers and other landowners for new zoning changes, height restrictions or other land use provisions. In other words, governments (read: "we taxpayers") would actually have to start paying people to obey new laws that secure property values, protect the environment and benefit the community at large.

Small wonder, then, that the measure landed on the California ballot only after New York developer Howard Rich contributed $1.5 million to help gather signatures.

Zoning laws change because communities grow and develop. Consider, for instance, a town where a video store has grown into an adults-only megastore. As the store has changed - so has the community - and now pornographic material is being sold near schools, homes and churches. So the community enacts a new law, limiting the size and location of such adult-oriented businesses. Such laws have routinely been upheld by the U.S. Supreme Court, including an adult zoning law in Los Angeles, which was sanctioned by the court in a 2002 case.

If Prop. 90 passes, such laws would be subject to a new type of lawsuit. The porn peddler - with the help of his trial lawyer - could sue, arguing that his property has been "damaged" and that he has suffered a substantial economic loss, which makes him eligible for compensation under the Initiative. If he won, taxpayers would have to pay him to move his store or limit his operations.

Prop. 90 has an exception for new laws that are necessary to protect "public health and safety." But a court could easily determine that the porn-shop limit was primarily about morality, or property value, and thus outside the initiative's health and safety exception.

This uncertainty is why lawyers will like Prop. 90 so much. It has so many indeterminate and undefined terms that it could end up being known as the "California Lawyer Full Employment Initiative."

We don't need years of costly litigation at taxpayers' expense to understand that state and local governments should be able to change the permissible land uses in an area that has changed. We know this already from past experience.

Before the automobile, by sheer necessity, most manufacturing workers lived close to their place of employment. As industrialization proceeded, however, we realized that sometimes this wasn't wise - that smoke, soot, noise and traffic often made factories bad neighbors for homeowners.

Societies began to strictly separate industrial and residential uses. Now, as heavy industry recedes as the dominant force in the U.S. economy, more and more planners are looking for ways to bring workers and their workplace back together. As our society evolves, so must our zoning laws.

Similarly, we used to believe that wetlands were a breeding ground for disease. Not surprisingly, we urged developers to fill these areas.

Now we know that wetlands provide invaluable ecological services including flood control and water purification. Again, our laws have changed to reflect increased knowledge.

Prop. 90 would stop in its tracks this process of change and improvement of laws that guide land use.

It could force taxpayers to pay porn peddlers to move away from schools and churches. The out-of-state crafters could have chosen to draft a measure limited to responsible reform of eminent domain - but they got careless. Californians should vote it down.

Doug Kendall is founder and executive director of Community Rights Counsel, a non-profit law firm that helps state and local officials defend zoning and land use laws.

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