Local Takings Initiative Heads to Ballot
An initiative that would require Nevada County to pay property owners if a land use regulation diminishes property value appears headed for the November ballot. Both opponents and supporters of the initiative expect that Nevada County will approve the initiative — and that it could lead to similar efforts in other parts of California, especially in conservative rural counties.
The initiative would establish a process for landowners to present claims to Nevada County Superior Court for reimbursement if the landowner believed a county regulation restricted the use or utility of property. The use or utility of property would be based on existing zoning, said Russell Steele, chairman of Citizens for Fair and Balanced Land-Use. The Superior Court would award claims based on a real estate appraisal.
A number of organizations on both sides of the "takings" debate are at least monitoring the Nevada County election because of its potential to set a precedent. The American Planning Association's California Chapter and national APA leaders are "watching in horror" but have not taken any active role yet, said Sande George, the California Chapter's Sacramento lobbyist. Meanwhile, the Sacramento-based Pacific Legal Foundation, one of the country's foremost property rights advocacy groups, is cheering on the Nevada County effort after providing input on early drafts of the initiative.
Initiative backers used Oregon's Measure 7, which voters approved in November 2000, as a model for the initiative, Steele said. The measure is necessary, he said, because "the county doesn't follow its own rules."
"All we're doing in this initiative is bringing the constitution down to the county level," Steele said. "We're trying to protect the little guy."
Opponents, however, say the initiative is unnecessary, too vague, and illegally imposes a new responsibility on the Superior Court. If the measure does pass, a court challenge is certain, although, not surprisingly, the two sides disagree on the measure's legality.
Sharon Boivin, a retired county planner and current planning commissioner, said "ultraconservative" old-timers are purposely pursuing a divisive initiative because they have lost control of the Board of Supervisors to slow-growth advocates for the first time in county history. "It's probably more aimed at discrediting this board," she said of the initiative.
Stretching from the Sacramento Valley's oak woodlands over Donner Pass to the Nevada state line, Nevada County has a history of polarized politics as the county's economic base of mining, logging and ranching has faded. During the 1960s, high-tech video companies migrated to the Grass Valley and Nevada City area. Also beginning in the late 1960s, the county began attracting a diverse new population: retirees buying homes in semi-rural subdivisions, back-to-the-land types moving into the woods, and artists drawn to a burgeoning cultural center. In spurts during the last 20 years, the area has drawn "equity refugees" from the Bay Area and Southern California, as well as commuters to the Sacramento metropolitan area. The Board of Supervisors remained in the pro-growth conservative camp until the last few years. Now, a 4-1 slow-growth majority controls the county. Two of the slow-growth supervisors, Elizabeth Martin and Bruce Conklin, face property-rights candidates in a November election.
Further complicating the situation is a two-year-old county effort to inventory and map biotic resources with the intent of protecting agriculture, forestry and recreation. The effort, known as Natural Heritage 2020, "will be the most detailed habitat information of any county in the state when it's done," Planning Director Mark Tomich said. However, property rights advocates assailed the process as a new regulatory scheme. Feeling the heat, supervisors have ordered planners to speed up the process and finish their work by June 30.
Behind the initiative is the Grass Valley-based California Association of Business Property and Resource Owners (CABPRO), a nine-year-old organization with ties to the Wise Use Movement. CABPRO President Margaret Urke said the county made the initiative necessary by treading on property rights, prohibiting some subdivisions and blocking development with environmental regulations.
"Our hope is this will deter the supervisors from creating these regulations and imposing a burden on property owners," said Urke. Any money the measure would cost the county is money the county would have taken from property owners via regulation, she contended.
Supervisor Martin does believe the measure could break the county financially. Martin said initiative advocates want "mob rule," not a well-reasoned political process. She also decried the vagueness of the initiative.
"I completely support people's property rights," said Martin, a Penn Valley farm owner and longtime family farm advocate. "I don't even know what these people are trying to accomplish because their language is so muddy."
In late May, initiative organizers submitted nearly 6,000 petition signatures, about two-thirds more than necessary to qualify for the November ballot. The initiative is one of the first local initiatives of its kind anywhere. More limited legislative efforts to compensate landowners for "takings" have arisen in some states and communities. A Florida law requires compensation when a property owner is "inordinately burdened" by regulation. Oregon's Measure 7 is broader, calling for the government to pay property owners for any regulation that devalues property. Thus far, an Oregon court has blocked Measure 7 from implementation because it improperly amended the state constitution.
Timothy Dowling, chief counsel for the Washington. D.C.-based Community Rights Counsel, called the Nevada County measure "a one-size-fits-all compensation mandate that has no relationship whatsoever with the takings clause of the Fifth Amendment." Dowling, who has filed briefs at the U.S. Supreme Court defending government regulatory practices, said the measure favors owners of vacant land over existing homeowners, who could feel the impacts of new development.
Dowling and other opponents are particularly critical of initiative proponents' reliance on nuisance, and public health and safety exceptions. Government uses its police power to regulate land use because healthy and safety, and nuisance definitions are narrow, often unclear and can fail to protect neighboring properties, they say. Opponents also question whether a county ballot initiative can assign a duty to a state court, and opponents complain the measure creates an undefined process.
Dowling further complained that the initiative would "displace 200 years of takings jurisprudence." That, however, is just the point, says Tahoe City attorney and planning consultant Gregg Lien, who wrote the initiative. The ballot measure would establish a new and separate process for property owners seeking compensation because landowners are now "impotent" in the current legal system, Lien contended.
Lien said he made the initiative short — it is seven sentences — because he wanted something "easily understandable" and because building all the complexities into the ballot measure was infeasible.
James Burling, an attorney for the Pacific Legal Foundation, called the initiative "a step in the right direction." It arises because the pursuit of takings claims in state and federal courts can take years, he said.
"Is it legal or not? That's hard to say. There's never been an initiative quite like it in California," Burling said. "I don't see any immediate infirmities."
If the measure passes, both sides expect any potential infirmities to be tested in court.
Russell Steele, Citizens for Fair And Balanced Land-Use, (530) 273-8085.
Margaret Urke, California Association of Business Property and Resource Owners, (530) 478-1331.
Gregg Lien, initiative author, (530) 583-8500.
Elizabeth Martin, Nevada County supervisor, (530) 265-1480.
Timothy Dowling, Community Rights Counsel, (202) 296-6889.
James Burling, Pacific Legal Foundation, (916) 362-2833.
Initiative website: www.fairnessinitiative.org
Complete text of the Nevada County Property Owner Reimbursement Process Initiative.
The people of the County of Nevada ordain as follows:
Nevada County (the "County") shall provide an orderly process for addressing claims for reimbursement, payable to the property owner, when it is determined that there is a reduction in the market value of an owner's parcel.
After passage of this initiative, this process applies to proposed projects when regulatory actions or determinations by the County restrict existing use or utility, in whole or in part, of the affected parcel.
Restrictions based upon a clear and present danger to public health and safety, and traditionally recognized common law nuisance prohibitions, shall not be considered in calculating reductions in value.
A property owner seeking reimbursement pursuant to this initiative shall first seek beneficial best use of the property. This best use must be denied by the Board of Supervisors prior to filing a claim.
The Superior Court of the County shall have exclusive jurisdiction over claims made, and shall have the power to make independent findings of fact and conclusions of law, and shall not be bound by findings or determinations by the County.
Reimbursement shall equal the difference in market value, with and without the regulation or action complained of, and shall include reasonable attorneys' fees and costs.
If any phrase, clause or part of this initiative is found to be invalid by a court of competent jurisdiction, the remaining phrases, clauses and parts shall remain in full force and effect.