Of the 11 states with eminent domain measures on the November ballot, nine passed the measures into law. The states that passed eminent domain measures were Arizona, Florida, Georgia, Michigan, Nevada, New Hampshire, North Dakota, Oregon, and South Carolina. Eminent domain measures failed to pass in California and Idaho.

The Initiative and Referendum Institute noted that the two eminent domain measures that failed “also included a regulatory takings component that would have required governments to compensate owners when their property values were reduced by land use regulations.” Arizona’s eminent domain measure, Proposition 207, contained a similar provision, and it passed by a 2-1 margin.

As was the case with the Oregon measure passed in November and another Oregon land use measure passed in 2004, Measure 37, opponents of the Arizona measure vowed to start litigation against the measure almost as soon as it passed.

Proposition 90 has been going back and forth all evening. As of now, with 38% of all precincts reporting, the noes have the slight edge: 51-49%.

Both of the big-money measures appear on their way down to defeat. Proposition 86 is at 54-46%. Proposition 87 is at 57-43%, which if it holds will be a truly humiliating margin for the measure’s backers.

As Daniel Weintraub of the Sacramento Bee notes in an October 24 article on Proposition 90, “This is a constitutional amendment that could change the face of California government forever. It deserves far more attention than it has received to date.”

The television ads on both sides of the proposition have probably done less to illuminate what the effects of the measure would be than the ads for and against any other issue on the ballot. The No on 90 ads ominously call it “a taxpayer trap,” which is a perfect way to stir up voter fear without providing any information (or even misinformation) as to why you should be scared — especially if you’re a California property owner.

As the League of Women Voters summarizes it, Proposition 90 would:

• require additional compensation to property owners if new laws or rules result in substantial economic losses to the owner, such as limiting the number of homes that can be developed on a parcel, limiting the height of buildings, eliminating road access to the parcel, or requiring endangered species protection or historical preservation
• limit the purposes for which a government could take private property for building a government-owned public facility, correcting a public nuisance on a parcel, or responding to a declared state of emergency
• require that the government own and occupy the acquired property
• prohibit governments from using eminent domain for economic development purposes
• require governments to pay more than fair market value if a greater sum were necessary to place the property owner “in the same position monetarily” as if the property had never been taken

The eminent domain provisions of Proposition 90 are controversial. But less-publicized are the provision that property owners be compensated by governments for any use that results in a “substantial loss of value” to their property. The language in this part of the proposition is vague. The state legislative analyst’s office notes that:

… the broad language of the measure suggests that its provisions could apply to a variety of future governmental requirements that impose economic losses on property owners. These laws and rules could include requirements relating, for example, to employment conditions, apartment prices, endangered species, historical preservation, and consumer financial protection.

One significant note: the provisions of Proposition 90 would not apply retroactively.

Lots of last-minute money has been pouring into the No on 90 campaign. According to an article in today’s Sacramento Bee, a joint labor-management committee of the State Building and Construction Trades Council has given $1 million to No on 90.

An attorney for the group is quoted as saying, “Because the threat to infrastructure development is so big from Prop 90, the group decided this was the one place they wanted to spend money. This fund has never contributed to a campaign before. Nothing like this has ever come along.”

Most of the Yes on 90 money in the last month has continued to come from committees affiliated with real-estate developer Howard Rich, as well as from small individual contributions.

According to the new Field Poll, Proposition 90 may not be in the enviable position that the Polimetrix poll released a couple of days ago indicated. The Field Poll shows Proposition 90 at 42-35% oppose.

The Field Poll’s Mark DiCamillo suggests in a San Diego Union-Tribune article that voters haven’t been persuaded that Proposition 90 is necessary:

It’s one of those propositions that voters are really having a hard time coming to grips with. They don’t really know what the implications are when they’re passing something like this. When you’re in that kind of predicament and you’re not really sure what it will do, the safer vote is the “no” vote.

If this trend holds, it will be another huge story, because not only have there been constant flows of big money to back Proposition 90, but almost every news report on the measure since the summer has predicted that it would pass, and with flying colors.

Robert Salladay of the Los Angeles Times writes on his blog today about a new poll by Polimetrix, a polling outfit headed by Stanford political science professor Douglas Rivers, which shows some unsurprising results — Schwarzenegger ahead of Angelides by 10 points, for instance — and some surprising ones, including what appears to be an unstoppable juggernaut in the form of Proposition 90, which the Polimetrix survey has at 58-28% support — a 30-point margin.

The governor came out today opposing Proposition 90, although it seems unclear what effect, if any, the late showing of his hand in this particular card game will have on the end result.

An editorial in today’s Sacramento Bee notes that most of the money behind the Yes on 90 campaign is courtesy of Howard Rich, a New York City real estate developer who, through a number of independent expenditure committees, has given $3.4 million of the $3.7 million in contributions that Yes on 90 has garnered this year.

An excellent piece in the July 13 edition of Capitol Weekly goes into more depth about Rich’s background. Rich is a nationwide crusader against eminent domain and has poured money into 7 of 12 of the eminent domain measures on state ballots this year. As the Capitol Weekly piece notes, Rich has financed campaigns in past California elections, including giving $1 million to the campaign against Proposition 45 (a John Burton-sponsored term-limits extension masure) in 2002.

Rich is quoted in the Capitol Weekly article as saying, “We have the ability to, in effect, bypass legislatures by going directly to the people through the initiative process.”

Other resources:

• The Center for Public Integrity recently issued a report on who else is financing the Yes on 90 campaign.

• The Public Broadcasting Service program “NOW” recently broadcast an episode on the extent to which Rich is helping to finance spending-cuts measures nationwide. There’s a link to the video and transcript here.

• On October 13, the Oregonian published a lengthy investigation into Rich’s political activity. The investigation found that Rich had given nearly $7 million this year alone to campaigns in favor of limited-government ballot measures nationwide.

• The San Francisco Chronicle has a diagram of the network of PACs that Rich has helped fund (along with an accompanying article).

If Proposition 90 passes, according to an article in the October 18 issue of the Los Angeles Times, almost every expense that is contemplated by Propositions 1A through 1E could be put on hold almost indefinitely.

That’s because the provisions of Proposition 90 could entitle property owners who believe that their property values are being harmed to go to court anytime a city or local agency released planning documents, which could essentially paralyze public works projects throughout the state. One expert quoted in the article noted that property owners in Oregon have filed nearly 40,000 lawsuits against local governments since Measure 37 passed in 2004 (Measure 37 has provisions that are substantially similar to some provisions of Proposition 90. One main difference is that Measure 37 deals mainly with land-use regulations, whereas Proposition 90 deals more directly with putting restrictions on governments’ authority to exercise eminent domain. Oregon also has a more directly eminent-domain-related measure, Measure 39, on this year’s ballot, and it’s sponsored by the same group that sponsored Measure 37, Oregonians in Action.)

Supporters of Proposition 90 counter that experts and government agencies that express alarm about the restrictions that Proposition 90 could impose are engaging in scare tactics because they don’t want to cede their right to exercise eminent domain.