California legislature sending help to farmers . . . by taking their property rights

April 12, 2013 | By TONY FRANCOIS

California Assembly Bill 823 will be heard next Monday in the state Assembly’s Natural Resources Committee.  Since the bill will impose unconstitutional exactions on many if not all farmland development projects in California, PLF sent this letter to the author and committee this week.  PLF does not take positions on pending legislation, but occasionally we do provide analysis to better inform legislators and the public about pending bills.  AB 823 requires farmland owners who want to develop to acquire another farm’s development rights and donate them to a land trust or a local government, as a condition of getting a development permit.  PLF’s letter explains how this requirement will frequently violate the unconstitutional conditions doctrine set forth in Nollan and Dolan.

But, what would you think if your county condemned your development rights, just because a neighboring farmer sold out to a developer?

An important question, because AB 823 might allow condemnation of farmland development rights.  The bill allows cities and counties to require a fee in lieu of (or in addition to) a donated conservation easement, in an amount necessary for the government to acquire the easement.  California Civil Code section 815.3(b) states that a city or county can only acquire or hold a conservation easement if it is conveyed voluntarily.  But AB 823 has some ambiguities from which a court could conclude that it overrides existing law, and allows local governments to condemn development rights.

That could be quite an accomplishment for one bill: imposing unconstitutional conditions on one farm property owner, leading to the condemnation of another farm owner’s development rights, all in the name of helping both of them.