Appellate court ruling blesses extortionate land-use practices

January 17, 2014 | By JENNIFER THOMPSON

Yesterday, the California First District Court of Appeal ruled against us in Powell v. County of Humboldt.  This is the case challenging the County of Humboldt’s requirement that our clients, Scott and Lynn Powell, dedicate a public airspace easement above their property in exchange for a building permit.  The County insists they obtain this permit in order to bring some unpermitted porches on their mobile home—built by the prior owner—up to code.

We argued that under the U.S. Supreme Court’s holdings in Nollan v. California Coastal Commission and Dolan v. City of Tigard, government can only require property owners to give up an interest in real property where there is a close connection between the impacts of the project for which the owner needs a building permit, and the purpose of the requirement to dedicate the real property.  In other words, real property permit conditions are only lawful where the condition directly mitigates—both in nature and extent—for harm caused by the proposed project.

In the case of the Powells, the County would have to show that their porch cover update would cause some kind of harm to airport operations in order to demand the easement.  Since the County couldn’t do that—because the Powells’ act of fixing their porches has no negative impacts whatsoever, much less does it pose a threat to airport safety—the condition is unconstitutional.  As the U.S. Supreme Court recently said in Koontz,

Extortionate demands for property in the landuse permitting context run afoul of the Takings Clause not because they take property but because they impermissibly burden the right not to have property taken without just compensation.

That’s exactly what happened in this case.  The County was requiring that the Powells give up an interest in their real property, along with their 5th Amendment right to receive just compensation for that interest, in exchange for a landuse permit.

Instead of vindicating the Powells’ 5th Amendment rights, the court followed some bad dicta in another U.S. Supreme Court case Lingle v. Chevron.  According to the court’s reading of Lingle, the standards in Nollan and Dolan only apply where the property owner can first prove that the condition being demanded—here an airspace easement—is a “per se physical taking.”  So the Powells would need to put on evidence now of how the government’s use of the easement would harm their use and enjoyment of their property—i.e. the number of planes, the altitude, the noise, the reduction in their property values, etc.  Of course the Powells couldn’t do that since they haven’t yet given the County the easement!

In spite of that mental mindtrap, the court did go on to say that it doesn’t believe the easement authorizes a limitless number of planes (with the attendant noise, vibrations and other impacts).   It also thinks that if the Powells do start to suffer from airplane overflights in the future, they’ll be able to take the County to court.  So perhaps that is something of a silver lining in an otherwise disappointing decision.