California’s Ballot Propositions 98 and 99: Legal and Conservation Risks

Contact: Susan Gluss, UC Berkeley School of Law, 510.642.6936 / 510.705.3366 (cell) for media interviews with Richard Frank

New study by Berkeley Law’s Center for Environmental Law & Policy examines initiatives’ legal uncertainties; Executive Director Richard Frank predicts rash of lawsuits if Prop 98 passes

Berkeley, CA—May 12, 2008… The UC Berkeley School of Law’s California Center for Environmental Law & Policy (CCELP) has released a critical analysis of Propositions 98 and 99—two dueling ballot initiatives. Both measures would restrict the state’s power of eminent domain, while Prop 98, which is much broader in scope, also takes issue with rent control and affordable housing. The study explains the history of the political controversy, key provisions of each measure, and some of the unresolved regulatory issues that each initiative will raise if passed by California voters in the June 2008 election.

Richard Frank, executive director of CCELP and author of the study expects a “rash of litigation” if Proposition 98 passes. “The outcome of Proposition 98’s unresolved issues promises to have a profound effect on the people, economy and natural resources of California,” says Frank.

Props 98 and 99 are born of the U.S. Supreme Court’s controversial 2005 Kelo decision confirming government’s broad power of eminent domain to condemn private property. The Fifth Amendment to the U.S. Constitution requires government to compensate private property owners if regulators condemn and take their land. But courts have typically failed to award just compensation to land owners, which has led to a long-simmering debate over government police power versus private property rights.


  • Proposition 98 could limit state and local governments’ power of eminent domain to acquire lands for flood control, parks, endangered species habitats, or historic preservation
  • Proposition 98 may similarly preclude public agencies from using eminent domain to purchase private lands for water conveyance and storage projects, electrical generating and energy storage facilities, and various projects such as desalination facilities;
  • Both Propositions are vague as to when state government would be able to exercise its power to condemn property to prevent criminal conduct (e.g., an illegal drug house) or protect key public health and safety interests from, say, a hazardous waste site;
  • While Proposition 98 would expressly ban rent control in California, the measure would probably also prohibit other, broader measures such as affordable housing and inclusionary zoning ordinances that now guarantee housing for low to moderate income people in a number of cities and counties;
  • Another component of Proposition 98 could possibly lead to the invalidation of—or require government to compensate property owners for—a wide array of land conservation and natural resource regulatory programs in California, including zoning measures, “smart growth” ordinances, regulatory limits on the exercise of private water rights, endangered species protection and pollution control measures.