Voters in California faced two competing ballot initiatives on June 3 that will impact both the government’s use of eminent domain (i.e. taking private land for some other purpose) and rent control (restricting the allowable rent for some units).

Proposition 98: essentially restricts any government act that restricts the use of private property, including the elimination of rent control. This is the most “private-sector” friendly of the two ballot initiatives, prohibiting all public “takings”. The measure does, however, include a provision that rent-controlled units in Los Angeles, San Francisco and Santa Monica would still be set by current rent-control measures when tenants leave, so it doesn’t get rid of rent control entirely.

Proposition 99: restricts government from taking owner-occupied housing, but retains rent control. This is the most “public-sector” friendly of the two. One unclear impact: whether, for example, rent control would still apply to a rented duplex unit where the owner lives in one of the units, since imposing rent-control on this unit would constitute a “taking” on an owner-occupied unit.

I believe that Prop 99 goes too far and Prop 98 doesn’t go far enough. That said, I recommend NO on 98 and YES on 99. Proposition 99 goes too far because it effectively means that *any* public action constitutes a “taking” and thus requires public compensation. For example, any laws that restrict building height could be seen as a “taking”. Don’t get me wrong, there are serious flaws to our current zoning practices; zoning reform is something that we desperately need. But in effect, Prop 99 means that *all* efforts to plan for future growth could be viewed as a “taking”. It could either bankrupt cities (requiring compensation for any planning efforts) or simply eliminate planning altogether. For this reason, I recommend voting NO on 98.

Despite Prop 98’s flaws, it began with good intentions — that is, to prevent people from losing their homes and businesses because of eminent domain abuse. I’ve previously commented on one such abuse in Hollywood. The landmark Kelo v. New London case — which many planners applauded — was not a just outcome to those whose homes were taken and given to a private developer. So we should pass measures that prevent such abuses — not necessarily on property rights grounds, but on justice grounds. But, by extending the measure to include any public actions, Prop 98 becomes an ideological tool that would make it impossible to plan our cities at all. Prop 99, on the other hand, acknowledges the injustice of losing one’s own home to eminent domain abuse. Where it doesn’t go far enough is in protecting small businesses from losing their property, and thus, their livelihood, as was the case in the Hollywood case. So while it doesn’t go far enough, it begins to demarcate the limits of eminent domain, without doing harm, so we recommend voting YES on 99.

The above should not be taken as an endorsement of current rent control policies, however. I’m a strong advocate for affordable housing, and rent control does have a short-term role to play to prevent people from being displaced. But it is a stop-gas measure, at best. It is not a long-term solution to the problem of housing affordability. And while those of us who advocate for a more just society often see landlords as “anonymous greedy corporations”, the reality is, most landlords (at least in L.A.) are actually small businesses or owner-occupied homeowners who rent out a second duplex unit. So planners should not be lulled into believing that the clumsy tool we currently have (rent control) is the only, or even the best, means of achieving affordable housing. It is not.

Other measures — inclusionary zoning and a more robust Section 8 voucher program, in particular — are more effective, particularly in L.A. Why? In L.A., only units built before 1978 are controlled. Thus, older units — those in most need of repair — are rent-controlled in perpetuity. At a certain point, the costs of upkeep outweigh the income generated by the controlled rents. So many landlords let them fall into disrepair or redevelop it — tearing down the building in favor of new condos, which are market-rate (note that rent control does not protect tenants from the landlord removing the units from the rental market through demolition or condo-conversion). This, of course, has the opposite effect as intended (which is to ensure a supply a rent-controlled apartments). Moreover, rent control applies to the unit (not the tenant) without any controls over *who* gets the unit (i.e. whether they need affordable housing or not). Indeed, many who could afford market rents take rent-controlled units that should otherwise be available to those who cannot. So, rent control is a very clumsy tool to achieve what we want — a renewable supply of affordable housing for those who need it.

Inclusionary zoning is a better approach. Here, a dedicated portion (10-20% of units) of all new projects of a certain size (say, more than 9 units) in all areas of the city are restricted to those earning less than 80% of median area income (moderate income), 50% (low-income), or 30% (very low income) for a set period of time (50 years). In exchange, developers get regulatory incentives (more units though not necessarily more bulk; reduced parking; faster approvals) to offset their additional costs of building affordable units (note: an 800-sf units costs about $250,000 to build, but can only be sold for about $100,000, thus developers lose $150,000 on each affordable unit). But it is very controversial, because most homeowners don’t want multi-family housing of any kind, let alone those with “poor people”, in their neighborhoods. Politicians to date have acquiesced to join the protests against inclusionary zoning (or density bonuses). Most planners are double-bound in that they support both affordable housing and bottom-up planning. So far, buttom-up planning has won.

Likewise, section 8 vouchers, unlike rent control, are tied to the person — if you can’t afford market rent, the voucher will make up the difference (up to certain limits). People have more choice (although we need better legislation to ensure landlords don’t discriminate against voucher holders). The point here is that planners should not think that rent control is the answer. We need it to protect mass displacement, and to at least preserve the limited supply we have, but more often than not, these units are pretty grim because of the built-in disincentives to make reinvestments in those properties.

So, while Prop 99 is the better start to curb eminent domain abuse, it should not be taken to mean support for rent control as the sum total of our affordable housing strategy. We still have work to do to ensure we have a supply of affordable housing for those who cannot afford market rents.