April 13, 2010

Constitution's takings clause defeats CCC's forced farming permit condition

By Constitution's takings clause defeats CCC's forced farming permit condition

Author: J. David Breemer

If I told you that you would have to farm 140 acres–forever –in order to get a permit to build one home on one acre, you'd probably think I was joking or describing something straight out of Communist Russia.

But a forced farming permitting scheme is no joke and it does not originate from the old USSR. It comes straight out of California, courtesy of the State's notorious land use commissars- the California Coastal Commission (CCC).

The good news is that, today, a California state court slapped down the CCC's attempt to impose a forced farming permit condition on a couple that was seeking to build a single home for themselves and their four children.

Dan and Denise Sterling bought about 142 acres of land in San Mateo County, South of San Francisco, with the intent to build a family home. The land is sparsely vegetated, rough and steep sloped. It can support a few head of cattle, but there is no evidence that it can be or ever was viably farmed. The Sterlings moved their four children into a small, old mobile home as they pursued their home plans.

After ten years of the permitting process, the CCC said the Sterlings could have their permit subject to 32 conditions. One of the conditions was that they dedicate to the public an agricultural easement of about 140 acres — basically, all their land outside the one acre home site. And the CCC did not just want a preservation easement- they demanded an easement that required actual farming or ranching on the land —- forever.

As property owner Dan Sterling put it, "The commission's scheme would have locked up our 140 acres of land forever, preventing us or our children from ever seeking a second home, and instead requiring us to farm what is essentially unfarmable land to keep it in the family."

With representation by Pacific Legal Foundation, the Sterlings told the CCC at the public hearing on their permit that the easement condition was an unconstitutional taking of property in violation of the 5th Amendment, as interpreted by Nollan v. California Coastal Commission, 483 U.S. 825 (1987) — another PLF victory against the CCC– and Dolan v. City of Tigard, 512 U.S. 374 (1994)

When the CCC did not listen, the Sterlings sued. Today, they won. The court struck down the CCC's permit condition on the Sterlings as an unconstitutional taking because the requirement to deed 140 acres of land into active agricultural use is unrelated and disproportionate to the impact of of one home on one acre of non-agricultural land.

Guess the Coastal Commission still has to learn about the Constitution the hard way.

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