When Dart and Esther Cherk needed to supplement their retirement income, they decided to split a three-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. This condition is unconstitutional because the Cherks are not causing the lack of affordable housing; in fact, by selling buildable lots, they are mitigating it. Worse, the county singled out the Cherks; neighbors did not have to pay the fee. The U.S Supreme Court has decided to review the unconstitutional conditions on these permits and hopefully bring justice to Dart and Esther Cherk.
The Cherk family has owned a three-acre vacant lot in the county for 60 years. When the Cherks needed to supplement their modest retirement income, they looked to sell their primary asset (other than their Mill Valley home, where they have lived since 1959). They asked permission from the county to split the lot into two parcels, so they could sell them separately.
But a Marin County ordinance requires property owners who divide small lots to pay a fee to the county for the purpose of creating affordable housing. In the Cherks’ case, the county conditioned the permit on a payment of $40,000. Marin County’s is one of many “affordable housing” policies across the nation that require property owners to fund government solutions to the housing crisis with extraordinary permit fees and conditions.
Such fees are unfair and unconstitutional. The Supreme Court has said—in Nollan v. California Coastal Commission, a 1987 Supreme Court case argued by PLF—that government may demand permit fees only in order to offset public problems caused by new development, such as increased traffic or utilities. The Cherks didn’t create the problem of affordable housing in Marin County; it was created by state and local policies that put limits on new construction. Furthermore, the Cherks’ plan would create more housing, not less.
The Cherks tried to work with county officials for over a decade and ultimately paid the fee under protest. They had to mortgage their home to come up with the money. To add insult to injury, the county has waived the affordable housing fee for some permit applicants while refusing the Cherks’ requests for a waiver. Both the federal and state constitutions forbid such unequal treatment.
PLF filed a lawsuit on behalf of the Cherks in Marin County Superior Court on the grounds that the fee was an unconstitutional condition on the building permit, in violation of the Fifth Amendment’s prohibition on uncompensated takings, and that the selective granting of waivers violated the Cherks’ constitutional right of Equal Protection. The U.S. Supreme Court has now decided to review the case.