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; other neighbors did not have to pay the fee. The Cherks paid the fee under protest and PLF now represents them in a lawsuit to strike down the condition and get their money back.
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. 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. The county conditioned the permit on the Cherks’ payment of $40,000 for “affordable housing.” The county demanded this fee without showing any kind of relationship between the Cherks’ project and the county’s lack of affordable housing, much less the “essential nexus” required by Nollan v. California Coastal Commission.
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.