March 16, 2012

Seven stories; one moral

By Seven stories; one moral

During the past week and a half, I have encountered seven separate instances of property owners stuck in seemingly intractable disputes with government agencies.  In each situation, someone is trying to use his or her property, but can’t because of some government action.  The experience of hearing people’s stories first-hand—and learning about how these encounters are affecting their lives—has been very moving and sobering.  Here are snapshots of what these people face:

1) A campground owner is required by one set of laws and one government agency to erect “Tsunami warning” signs on his property.  As soon as he does that, a separate agency acting under a separate set of laws threatens him with an enforcement action and fines because he did not obtain a permit from that agency before erecting the signs.

2) A group of farmers faces pending legislation that says: if you want to use 5% of your property for non-agricultural purposes (which includes building a road or additional housing), you must place 95% of your property into an agricultural conservation easement forever.  Never mind if the price you paid for the property reflected its potential development rights.

3) A property owner receives a letter from the county stating that it is changing the zoning on her land.  She has the option of placing part of her land into a different type of zone, but she must decide within two weeks.  The letter, furthermore, explains the new zoning, but doesn’t compare it with the old zoning.  Are they “downzoning” her property?  Should she opt into the separate zone?  Does she have enough time to find an attorney who can explain the different options to her and advise her of her rights?

4) A man bought investment property that he planned to develop once the surrounding commercial areas expanded.  Meanwhile, a couple of government agencies acting under federal law designated his property as a conservation habitat for endangered species.  Now, he can only develop 10% of the property, which is not economically feasible because he would never be able to recover what it would cost him to build such a small development.  The clincher is that he can’t even challenge this 10% designation in court until he applies for a building permit and is rejected.  Never mind if the process for obtaining that rejection costs more than the value of the property itself and takes several years.

5) A property owner wishes to build a housing development, but the city won’t give him a permit unless he builds affordable housing, parks and other public amenities.  The problem is that the city won’t grant him a high enough density allowance on the parcel to make building the project—with all of the city’s demands—economically feasible.  As a result, the property remains vacant, as it has been for years.

6) Property owners receive notice in 2007 that the government is using its eminent domain powers to condemn part of their property to widen a road and put in a new freeway bridge.  They are still waiting to receive a compensation offer.  They must sell the house in order to secure their retirement, but they can’t sell it for the amount they need to obtain while this condemnation proceeding hangs over their property.

7) A property owner sits down with county planning officials before buying a parcel of property and makes sure that she understands all of the permits she needs to obtain before she can build a single-family home in a residential neighborhood.  After undergoing the time-consuming and expensive process of obtaining a Conditional Use Permit, the County tells her—for the first time—that her property is located in a “Significant Ecological Area” and therefore, she must obtain an entirely independent permit from an entirely different agency.  This new permit requires that she obtain a biological study from a county-approved company that costs $70,000.  This company won’t even perform the study because they believe it is not “financially prudent” to do so on such a small lot.

In reflecting on these seven stories, I am struck by how similar they are in various fundamental respects.  First, the only thing these people want to do is to use their property.  Period.  None of them are asking for government handouts or private charity.  They simply want to use their own property—for their own purposes—and to be left alone.  Second, in several cases, the use to which they want to put their property will benefit many people.  These uses include: farming, building housing and commercial facilities, and providing public camp grounds and recreational areas.  Third, to paraphrase something that one of these property owners said to me: why is government forcing those of us who are not experts in planning, zoning and land use issues to have to hire someone who is educated and experienced with these issues to help us defend our rights?  In other words, since when did you have to be an attorney in order to navigate all of the red tape that stands between you and a building permit?

The sad reality is that we now live in a world where increasingly, you need expert help in order to use your property or to develop it.  It can be very difficult to follow the law when the type of permit or permits you must obtain depend on assessments by multiple agencies, each with their own requirements and standards.  As Story #7 illustrates, these regulations can be so complex that the government officials whose job it is to enforce them don’t always understand them.  If someone who works for a planning department is confused and indeed wrong about the kind of permit you need to build your house, how are you, as an individual property owner supposed to know?

So what is the moral of these seven stories?  Property rights in America are in a very sorry state.  Somehow we have, as a nation, acquiesced to the idea that these “government experts must know better than we do” and that a world without such experts would be one in which we would all be stuck drinking poisoned water and breathing poisonous air.  I certainly don’t mean to imply that everyone actually believes that, but rather, that such an idea has helped to fuel the legal environment in which we now live.  Here at PLF, we are committed to fighting for property owners who suffer from the manifestations of that type of thinking—day in and day out.  We hope to succeed not only by changing the law, but by swaying public opinion away from “just trust the government experts” type thinking towards the principles of freedom and individual rights that have historically defined our Country’s legal landscape.  Thanks to those of you who support our efforts and who allow us to stay in this fight.

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