SAN RAFAEL, CA; August 17, 2016: An elderly couple has sued Marin County for being forced to pay an extortionate “affordable housing fee” of nearly $40,000 for permission to split a roughly three-acre residential lot into two lots. The land in unincorporated Marin County, north of San Rafael, has been in their family for more than 60 years and they split the lot to use the proceeds to build their long-planned family retreat.
In the challenge, filed this week in Marin County Superior Court, Dart and Esther Cherk of Mill Valley are represented by attorneys with Pacific Legal Foundation (PLF), a national property rights watchdog organization. Donor-supported PLF represents the Cherks free of charge, as with all its clients.
At issue is a $39,960 fee the county imposed pursuant to Marin County Code Section 22.22.090 to fund “affordable housing.” According to U.S. Supreme Court precedent, regulators may impose fees as a land use permit condition only to the extent they mitigate for some adverse public impact from the proposed land use project. However, the Cherks’ lot split does not increase the need for affordable housing.
“Local governments are increasingly abusing the permit process to make unlawful demands of property owners while they are in a vulnerable position,” said Larry Salzman, a PLF attorney representing the Cherks. “There is no connection between the Cherks’ lot split and the lack of affordable housing in Marin. In fact, by increasing the supply of buildable lots in the area, the Cherks are doing their part to help solve the lack of housing here.”
Indeed, originally the Cherks sought permission to subdivide the parcel into four lots and create a project of genuinely affordable housing. But without any interest or support from the county, ultimately the Cherks agreed to a plan of creating just two lots. Yet the county still insisted on charging them the stiff affordable housing fee — which they paid under protest, having to take out a loan against their own house to raise the money.
“We are suing the county because its oppressive financial demand on the Cherks is a flagrant violation of their constitutional rights,” said PLF Principal Attorney Damien Schiff. “The Supreme Court has said clearly and consistently that land use authorities cannot impose punitive conditions or demands for money that have no relationship to the proposed land use project. In other words, the permit process cannot be used as a shakedown machine.
“The injustice to the Cherks was even worse,” Schiff added, “because the Cherks were dealt with more harshly than some other area landowners. Even while the county was imposing a crushing financial demand on the Cherks, it was waiving the fee for some other property owners in the area who were also subdividing. So we have the county violating Equal Protection guarantees as well as the Constitution’s safeguard for property rights.”
“It’s very disappointing that the county resisted our initial subdivision plan for four lots, a plan that emphasized affordability,” said Mr. Cherk. “But we had to go ahead with what they would permit — we couldn’t afford not to. However, when they told us that the subdivision they would approve would require a $40,000 fee, it was a blow. This was $40,000 that we didn’t have. We were able to pay it only by going into the red. Our house had been owned free and clear, but now we are in debt and under pressure to repay that debt, all because we had to raise the money to pay the county’s fee. I feel damaged by this whole punishing process.”
About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation (PLF) is the leading watchdog organization that litigates for limited government, property rights, and individual rights, in courts nationwide. PLF represents all clients free of charge.
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Pacific Legal Foundation is a national nonprofit legal organization that defends Americans threatened by government overreach and abuse. Since our founding in 1973, we challenge the government when it violates individual liberty and constitutional rights. With active cases in 39 states plus Washington, D.C., PLF represents clients in state and federal courts, with 11 victories out of 13 cases heard by the U.S. Supreme Court.