Fighting for freedom in Humboldt County

February 28, 2013 | By JENNIFER THOMPSON

Can the government force you to give up an interest in your real property in exchange for a building permit?  That is the question PLF is litigating on behalf of property owners Scott and Lynn Powell in the California First District Court of Appeal.  We recently filed our Opening Brief, in which we explain that outside of very narrow circumstances, government cannot require people to give up their constitutionally protect property rights in exchange for permits.  The case should be fully briefed this spring, at which time the court will set a date for oral argument.

The case arose when the Powells bought a mobile home on a one-acre lot in McKinleyville, an unincorporated community in Humboldt County.  Shortly after the Powells moved into the home, the County sent them a letter, telling them that the covered porches, deck and carport surrounding their home had all been built without a permit and were not up to code.  The Powells were required to bring the structures up to code and to obtain a permit, or else face fines and penalties.  And so they began the permitting process: they hired a contractor who drew up plans for making the required alterations; they submitted those plans along with a permit application to the County; and they paid the necessary permit fees.

The County approved the Powells’ building plans, but told them it would not issue the permit unless and until the Powells executed a deed restriction, granting the County a permanent Overflight Easement through the airspace above their land.  The deed would bind all future owners of the property so long as the nearby Arcata-Eureka Airport was in operation.  Under the easement, the County would have the right to “make flights, and the noise inherent thereto, in the airspace over the [Powells’] property,” and to “regulate or prohibit” the release of substances or emissions into the air including steam, dust, smoke, and light.  By demanding that the Powells give up this easement in exchange for a building permit, the County seeks to take away an interest in their real property without paying for it.  Moreover, once the County obtains the easement, the Powells will be unable to vindicate their right to use and enjoy their property in the future, should the airport’s expansion make living on their property intolerable.

PLF filed suit alleging that both the California and Federal Constitutions proscribe the County’s actions.  Under binding U.S. Supreme Court precedent, government may only condition the grant of a discretionary benefit—i.e. a building permit—on the surrender of a constitutional right—i.e. the right to receive just compensation when property is taken for a public use—where there is a close connection between the condition and the mitigation of harm that would otherwise be caused the proposed development.  The burden of demonstrating that connection falls on the government.  Here, the County must show that the Powells’ update to their porch covers would cause harm to airport operations.  Because the County never satisfied that burden, its demand for an Overflight Easement from the Powells is unconstitutional.  Furthermore, the County never could make such a showing because the Powells’ update to their porch covers will not cause any harm whatsoever—much less harm to airport operations.

The scope of governments’ power to withhold building permits from property owners is an issue that PLF has litigated over its 40 years history.  In 1987, we won a Supreme Court victory in Nollan v. California Coastal Commission, a case which severely curtailed governments’ power in this arena.  In January, the Supreme Court heard oral argument in our case, St. Johns River Management District v. Koontz, where we once again defended property owners’ constitutional right to use and enjoy property without having to succumb to government extortion.  And in the 26 years between Nollan and Koontz, we have continuously represented people like the Powells in lower courts across the country—people who merely want to use their property and to be left alone.  We are hopeful that the California Court of Appeal will vindicate the Powells’ constitutionally-protected property rights, and thereby affirm that the state and Federal Constitutions are in fact a robust check on the exercise of government power.