As reported, PLF represents Humboldt County residents Scott and Lynn Powell in their fight against government extortion. The County of Humboldt demands that the Powells obtain a building permit to bring some covered porches on their mobile home up to code. (The prior owner never bothered to get a permit). But the County won’t issue the permit unless and until the Powells deed to the County an overflight easement allowing airplanes to fly over their house—along with the attendant noise, vibrations and other disturbances.
The state and federal constitutions prohibit government from taking private property without paying “just compensation.” Here, the Powells’ are being forced to surrender their constitutional right to receive just compensation for the taking of the easement, in exchange for a building permit. This, according to the U.S. Supreme Court, is an “unconstitutional condition” and illegal:
Under the well-settled doctrine of “unconstitutional conditions,” the government may not require a person to give up a constitutional right—here the right to receive just compensation when property is taken for a public use—in exchange for a discretionary benefit conferred by the government where the benefit sought [here, a building permit] has little or no relationship to the property [the easement].
After PLF filed its Opening Brief in the California Court of Appeal in February, the County filed its Brief, and we responded in a Reply Brief this week. Our brief explains why Nollan v. California Coastal Commission, a case which PLF won at the U.S. Supreme Court in 1987, mandates invalidating the easement condition here.
In Nollan, the Court struck down a requirement that Pat and Marilyn Nollan deed an easement to the Coastal Commission in exchange for a building permit. The Court held there was no close connection, or “essential nexus” between the impacts of the house the Nollans wanted to build, and the requirement that they dedicate an easement. Hence, the condition was unconstitutional; it was simply an excuse for government to take private property without paying for it. After Nollan, permit conditions are only constitutional when they mitigate for harm caused by proposed development.
Under Nollan, the Powells win this case. There is no connection between the Powells’ update to their porch covers and the dedication of an overflight easement. In fact, the County has admitted that the Powells’ project poses no threat to airport safety, neither has the County identified any other harmful impact of the Powells’ project. As a result, the condition is unconstitutional.
Further, under the County’s reading of Nollan and other relevant cases, there is no limit to what government can demand in exchange for building permits. The County asserts in its brief, that “the government’s benefit given to the property owner, [i.e. the permit] is the just compensation for the taking imposed as a condition for the benefit.” Hence, as long as government gives property owners building permits, it never has to pay for violating their 5th Amendment rights. Fortunately, the Supreme Court has never affirmed such an idiosyncratic reading of the Constitution. And in fact, it has continuously held that Nollan applies to government demands for property in exchange for building permits. Hopefully, the appellate court will reject the County’s bogus legal theories and strike down the easement condition as unconstitutional. With briefing in this case now complete, we now look forward to the court setting a date for oral argument.