6 months ago

For many, banning water hauling is banning development

By Jeremy Talcott Attorney
Hazardous material transport, according to the California legislature.

There’s more than one way to skin a cat (or so I’ve heard). Well, there’s also more than one way for the government to prevent development on private property. Damien Schiff and I recently published an OpEd in the Country Journal for Acton and Agua Dulce about a new state law that has a big impact on property rights for many rural landowners.

Download a PDF of our OpEd here.

Passing a law that prohibits all development at particular locations is within a state’s police power. However, when government takes away all economically beneficial use of a property, the Takings Clause of the Fifth Amendment to the U.S. Constitution requires government to pay just compensation to the owner. Because paying for property can get expensive, government often tries to regulate away substantial property rights, but (under some questionable Supreme Court precedent) leave enough rights that the compensation requirement isn’t triggered.

Of course, as governments make more and more restrictions on the ability to use property, there is often a point where the outcome is the same: the owner cannot make an economically beneficial use of their property. A new state law, SB 1263, is putting many rural landowners in just such a position.

Under SB 1263, which was signed into law last September by Governor Brown, local government may not permit residential development that will rely on the use of hauled water. But for many landowners, municipal hookups or groundwater wells are simply not an option. The ban on water hauling permanently ends their dreams of building a home in the rural communities they love. Those dreams were perfectly reasonable. After all, many existing homes have already been built using hauled water, some directly adjacent to properties that are now unable to be developed.

This fact also renders the state’s justifications for SB 1263 unpersuasive. If hauled water represents a public health risk, it’s hard to imagine why the state would continue to allow so many existing homes to rely on it for their water needs. The state suggests that there are risks of contamination, but these risks exist in every available water source, and are easily addressed through sanitary practices or filtration units. Further, hauled water providers are already subject to strict licensing requirements under Article 12 of California’s Sherman Food, Drug, and Cosmetic Law, which ensures that hauled water is a safe and effective water source. It seems much more likely that the state wanted to limit residential expansion into areas where municipal sources are not available.

It’s hard to definitively prove whether the ban on hauled water was motivated by anti-development sentiments, but for many, the end result is no less a total taking of all economically beneficial use. For these landowners, Damien and I believe that SB 1263 may have unconstitutionally taken private property without paying just compensation, and we think that landowners in areas such as Acton and Agua Dulce may want to look to the Takings Clause of the Fifth Amendment to vindicate their property rights.

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