August 17, 2016

Marin County punishes property owners with unconstitutional fees

By Larry G. Salzman Senior Attorney

When Dart Cherk and his wife Esther, both 83 years of age, needed to raise funds to supplement their modest retirement, they looked to the only significant asset they had beside their home: a vacant piece of land in Marin County, California, left to the family by Dart’s father. The property had been in the family for roughly 60 years. Dart is an architect and he thought the best idea was to split the lot to maximize its value and sell a portion, to live on the proceeds.

Dividing the property required a permit, however, and as condition of granting that permit Marin County officials demanded an extraordinary fee of nearly $40,000. That fee is not only unfair, but unconstitutional—and so the Cherks have joined with PLF this week to file a constitutional lawsuit in the Marin County Superior Court to challenge the fee.

According to the County, the money is needed to mitigate the community’s lack of affordable housing. But nothing about the Cherks’ lot split causes an affordable housing problem—if anything, increasing the supply of buildable lots in the community helps solve a lack of housing. The U.S. Supreme Court has repeatedly said that regulators may impose fees as a condition of land use permits only to the extent that they mitigate some adverse public impact of the proposed project. Marin County’s demand just doesn’t meet constitutional muster. And Marin’s treatment of the Cherks is yet worse: while taking nearly $40,000 from them (under protest), the County waived so-called “affordable housing” fees for neighboring property owners splitting similar lots. That unequal treatment violates California and federal constitutional guarantees of equal protection under the law.

Sadly, the fee forced the Cherks to mortgage their home because they didn’t have the cash available to pay the fee in exchange for receiving the permit. And they have since had to sell both halves of their divided lot to make ends meet. Their lawsuit now seeks a refund of the money they paid and a declaration that the fee was unconstitutionally imposed on them.

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Cherk Family Trust v. County of Marin, California

When Dart and Esther Cherk needed to supplement their retirement income, they decided to split a three-acre vacant lot in Marin County that had been in the family for six decades in order to sell both halves. As a condition of the lot split, however, the county demanded that they pay $40,000 as an “affordable housing” fee.

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