October 7, 2009

Janet Auxier and the City of Hesperia

By Janet Auxier and the City of Hesperia

Author: Timothy Sandefur

Tomorrow morning, I’ll be arguing in a southern California trial court on behalf of Janet Auxier, a businesswoman in the desert community of Hesperia, about an hour east of Los Angeles. She owns a business called The Rock Yard, that sells decorative rock and gravel. She bought the property back in 2003; before she owned it, it was used as a business that stored and sold drywall. She never wanted to build anything on the property, and never applied for a building permit or anything like it.

Nevertheless, the city’s bureaucrats saw Janet Auxier as an opportunity. You see, the business sits in a desert area with no adjacent properties, and the roads are unimproved and in poor condition. The politicians would like to see the area improved, and they decided to make Auxier pay for those improvements. So they ordered her to prepare a “Site Plan” for her property—and, as part of her Site Plan, to pay to renovate three new sections of roadway, and provide sidewalks, streetlights, traffic lights, street signs and striping, a water main, a fire hydrant, landscaping…and various other improvements which would cost some $200,000.

All of this despite the fact that Auxier didn’t seek to construct anything on the property!

Back in 1987, PLF won a U.S. Supreme Court case called Nollan v. California Coastal Commission, in which the Court said that local officials can require property owners to give up certain things—to pay fees or to construct things—in exchange for building permits, so long as those things relate in some way to the effect that the person’s construction would have on the general public. In other words, if you’re going to construct something that will have an impact on local roads or on public facilities, the government can require you to make up for those impacts by providing the general public with something in exchange.

What the government can not do is exploit your building permit application as an opportunity to get you to pay for whatever the government feels like demanding from you. In the Nollan case, when a family sought a permit to construct a second story on their house, the government demanded that they give up an easement across their yard—something totally unrelated to the second story on the house. The Supreme Court called this an “out and out plan of extortion.”

Janet Auxier’s case is even more extreme, because she never sought to build anything on her property in the first place! She simply bought an existing business property and wanted to continue using it as a business property. Yet the city is forcing her to pay for $200,000 worth of local improvements in exchange for a permit to…well, a permit that doesn’t do anything at all.

Read more about the case here.

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