Regulation vs. land rights
An initiative on the November ballot in Nevada County has property rights advocates excited, government officials clutching county coffers, and some land-use experts shaking their heads.
Terry Rivasplata, director of the Sacramento Valley section of the American Planning Association, said he wouldn’t vote for it. Grass Valley attorney Joseph Bell pulls out dozens of volumes of code books from his law library containing codes that the initiative would impinge on, and says the initiative is designed to keep courts busy “morning to night.”
Nevada County officials fear the initiative will lead to claims that will drain county finances to the tune of as much as $10 million a year according to an economic study, causing layoffs and possibly even bankruptcy.
It would also make it impossible for the county to enforce its regulations and oppose unscrupulous developers, county officials say.
But initiative proponent Norm Sayler said it would compensate him – and smaller landowners as well – for the effects of regulations that have sprung up since he first came to the Donner Ski Ranch in 1955 and helped build a chairlift.
Sayler, 69, and his wife put “every penny” into the tiny ski area over the years, and through hard work became its major owners.
When he tried to sell the place two years ago and retire, Sayler said it was Nevada County land-use regulations that scuttled a $9 million deal and scared away Las Vegas investors who were interested in developing the ski area and its 450 acres, across from the Sugar Bowl ski area and one of the largest private land parcels in the Donner Summit area.
The investors backed out when they talked to Nevada County planners and were told their development would take years and require compliance with Nevada County’s regulations, said Sayer, president of Donner Ski Ranch.
Sayler said situations like that should require compensation by the county, though he does not want retroactive compensation for that particular project.
“If the county deprives me of my investment, they should pick up the tab,” said Sayler.
Sayler said people have moved to Nevada County and helped put more and more rules in place since he started working on the ski area. It’s OK to cut down trees when they’re buying their house, said Sayler. But the minute they get here, they don’t want the sand and gravel plants, don’t want trees to be cut down.
“Everybody wants to put in more rules and regulations, so you cannot live the life you came here for,” said Sayler.
A petition signed by 5,463 registered voters will place on the November ballot what proponents describe as the antidote to rules and regulations – the Property Owner Claims Reimbursement Process. It could be one of the most closely watched county issues in the state.
Margaret Urke said people from other counties in California have contacted the Nevada City-based California Association of Business, Property and Resource Owners, asking her to keep them posted.
“This is going to be national news,” said Urke, CABPRO’s executive director. “If it is successful here, it will change the way we do business.”
The initiative follows a similar measure passed by Oregon voters in 2000 that is being reviewed by the state Supreme Court. Similar initiatives were defeated by voters in Washington and Arizona, while Florida and Texas have takings laws.
The initiative here proposes a claims process through Nevada County Superior Court. The idea is to create a way to reimburse property owners whose land is worth less because of government regulations. Without the initiative, there is little that property owners can do to fight government takings of land, say its backers.
Gregg Lien, a Chicago Park attorney who is the initiative’s primary author, said if property owners don’t like what comes out of the county’s planning process, they can either pack their bags and go home or litigate the decision.
“If you’re a property owner, your recourse is pretty limited,” said Lien.
Property rights advocates say the initiative – the first of its type in California -will change that.
It will create an easier road to court for landowners who suffer damages to their property from excessive regulations, said James Burling, an attorney with the Pacific Legal Foundation who helped write the initiative. The foundation is a Sacramento property rights organization.
Burling said the initiative gives people a way to fight the taking of land by government regulation.
Examples of takings situations include downzoning, which restricts the use of property; open-space designations, scenic view sheds, oak tree restrictions, deer migration corridors, riparian areas, trail easements and urban growth boundaries.
Now, a landowner whose property has been impacted by regulation finds it difficult, if not impossible, to get compensation, said Burling. The owner would have to prove virtual destruction of the property’s values and an inability to use the land.
“If it passes, it’ll be a historic measure, though it probably will go through the inevitable court challenges,” said Burling. “If it passes, it may set a precedent.”
The initiative would also send a message, say its proponents.
“Property owners are getting very disturbed with the arrogance with which local governments regulate their property,” said Burling.
The Union attempted to find aggrieved property takings’ victims who went through the Nevada County planning process with the help of CABPRO; Citizens for Balanced Land Use, the initiative’s backer; and other sources. But none of the alleged victims contacted by The Union were willing to be interviewed.
Some attorneys and planners who have looked at the initiative say that instead of sending a clear message, it will create a haze of uncertainty, even chaos, in land-use planning. Developers may, in fact, be discouraged from building when they can’t figure out what they can do on their land.
“That uncertainty is something developers would tend to look at, worry about,” said Rivasplata.
Rivasplata said when he was in Gov. Pete Wilson’s office overseeing legislative proposals, developers and business people said they needed certainty. They wanted to know what they could do with their property, and what’s going to happen in their area.
The average homeowner is just as uneasy about not knowing what will happen in the neighborhood, said Rivasplata.
He noted that regulations not only take, they also give. People benefit from a nicer looking community, and from protection from encroachment by neighboring projects.
Uncertainty would impact people trying to acquire land for open space who wouldn’t know whether the county was solvent enough to back up their efforts, and homeowners who wouldn’t know if their neighbor was trying to put in something that would lower their property’s value.
Initiative backers say there is protection through clauses exempting health, safety and common law nuisance restrictions – preventing would-be hog farmers, for instance, from filing claims.
Bell, a Grass Valley attorney who has handled land use and environmental cases, said the initiative is a simplistic approach to a complex area of law that encompasses government codes, land use codes, and health and safety codes – literally dozens of volumes of legal code.
Looking at it from an attorney’s point of view, Bell notes that some terms in the initiative are not defined, and others have no readily apparent legal meaning.
For example, the initiative refers to market value, a more uncertain term than fair market value.
It’s a radical, broad range of possible claims that government would be threatened with just for enforcing the general plan, zoning and use permit requirements, said Bell.
The term “regulatory actions or determinations” is not defined anywhere in particular, for example, said Bell.
“Is a stop sign a regulatory use?” he asks rhetorically.
“It’s a broad, simplistic, generalized term that has no limit, and I think this initiative, in turn, is therefore intended to cover virtually any land-use regulation, which is crazy,” said Bell, “which is, again, either inadvertence, lack of careful thought in the drafting, or a subterfuge to create chaos in local government.
“I think when you look at it overall, and you hear that an attorney drafted it, and its been approved by entities such as the Pacific Legal Foundation, which does nothing but litigate – that’s all they do, they litigate – it’s designed to create litigation one way or the other. As a litigator, I think I can see it pretty clearly.”
Bell said the initiative is also unconstitutional because it ignores an April 23 U.S. Supreme Court decision on takings, a ruling backing up the Tahoe Regional Planning Agency’s moratorium on development.
Bell points to a section of the U.S. Supreme Court ruling that holds the property owner has to be deprived of all viable economic use of his or her property.
Lien said the initiative was written to be brief and as concise as possible. It will be up to a Superior Court judge to breathe life into the language. The document was not designed to create litigation; it was designed to level the playing field with what Lien calls the “land-use game in Nevada County.
“It’s simply an intent to keep it fairly short, and to keep it understandable,” said Lien.
Burling disagrees with Bell’s claim about the initiative’s constitutionality, saying that the Tahoe ruling was much narrower and only covered whether a temporary moratorium on development was considered a taking.
There will likely be more debate among attorneys here if the initiative passes. And, as in Oregon, the higher courts may have the last word on the issue.
Bell and others believe the initiative will be hit with legal challenges – challenges that could take it as high as the U.S. Supreme Court.
Oregon’s Measure 7 asked voters to decide if landowners should be paid if government regulations adopted after someone buys a piece of land reduce its market value.
Voters approved the initiative in November 2000. But the Oregon Legislature was unsuccessful in rewriting the initiative, and it went to that state’s highest court after a circuit judge ruled it unconstitutional. The state Supreme Court is still considering the matter.
The court challenge kept claims from being filed. But one that made it under the wire included a $50 million claim against the city of Jacksonville, with a population of 2,360; and Jackson County in southern Oregon, with a population of 85,000.
A mining company wanted to mine shale and gravel from a hillside. But the city and county denied permission for the mining partly because they didn’t want gravel trucks driving through Jacksonville, which is on the register of historic places, said Evan Manvel, director of education for the 1000 Friends of Oregon, a land-use organization.
The 1000 Friends opposed the measure, said Manvel, because they believed it was an extreme measure, the most costly measure ever passed in Oregon.
Manvel said the measure was written in a way that would trigger huge payments to real estate developers, as well as to people genuinely affected by the laws.
“Measure 7 was a sweeping measure that goes beyond most property takings laws, so people were looking for anything to sue,” said Manvel.
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