2 months ago

A new excuse to punish small property owners: “affordable housing”

By Larry G. Salzman Senior Attorney

Can the government force a property owner to pay tens of thousands of dollars in “affordable housing” fees as a condition of granting a permit to divide a single residential lot into two lots? It hardly seems fair that someone who is increasing the supply of developable land in the neighborhood be saddled with special responsibility to mitigate a community’s long-standing housing shortage.

Today PLF filed a brief in Marin County Superior Court, in Northern California, demonstrating that it is both inconsistent with state law and unconstitutional for that county’s government to make individual property owners pay extraordinary permit fees to mitigate a general social problem (like the lack of affordable housing) not caused by the proposed new land use.

That’s just what happened to Dart and Esther Cherk when they decided to divide and sell a 3-acre plot of land in Marin that was given to their family decades ago by Dart’s father. The Cherks, now in their 80s, wanted to sell off half the property and use the proceeds to replenish their small retirement savings. But during the permitting process the County passed a new law to raise money for affordable housing—and hit the Cherks with a surprise fee of nearly $40,000. The County agreed to the lot split, which met all zoning and other legal requirements, but only on payment of the fee.

There is little dispute that Marin County has a housing shortage that has resulted in exceedingly high prices and a lack of affordability. The Cherks lot-split, however, doesn’t in any way cause that problem—it in fact helps increase land available for future homes.

If the County wants to address the housing shortage there are many ways by which it might do so. Most obviously, it could allow more homes to be built by private developers—yet the County is notorious for refusing to issue anything near the number of building permits necessary to meet the demand of its growing population. It could even choose to subsidize affordable housing through taxes borne by the public as a whole if officials could convince local taxpayers to spend their money that way. Instead, the County has chosen to scapegoat individual property owners like the Cherks by charging big fees to mitigate a housing shortage largely created by its own anti-development policies. PLF aims to hold the government accountable for this unconstitutional fee scheme.

A hearing on our motion for judgment in the case is anticipated for early December in Marin.

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Cherk Family Trust v. County of Marin, California

When Dart and Esther Cherk needed to supplement their retirement income, they decided to split a 3-acre vacant lot in Marin County that had been in the family for six decades in order to sell both halves. As a condition of the lot split, however, the county demanded that they pay $40,000 as an “affordable housing” fee.

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