Put the Constitution back in Land Use Planning
In many of Nevada County, California’s eloquent bastions of socialism, the values of capitalism, the free market system, and private property rights are looked down upon and disdained. It appears as if these long-held American values are now out of fashion, viewed as unworthy, and selfish. Over the past six years the taking of private property in Nevada County for open space, without just compensation, has become the standard in land-use planning.
After passage of the 1995 General Plan Update and subsequent elections moved the Board of Supervisors from centrist to leftist, when four board members with socialist sympathies were elected, landowners were told that the Board of Supervisors knew what was best for the public good. In their mind, the public good was more important than individual rights. These new leaders wanted less growth and more open space, but found taxpayers were unwilling to foot an open-space tax, so they decided to take it from private landowners by regulation—a few acres at a time.
Landowners upset by this new land-use policy formed Citizens for Fair and Balanced Land-use, a political action committee. CFBL’s first order of business was to make the Constitution of the United States part of the local land use planning process.
The Fifth Amendment provides that no person shall “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The first “due process” clause requires a fair procedure. The second one, known as the “takings” or “eminent domain” clause, requires that the government provide just compensation when a government action or regulation deprives a property owner of the use or possession of his property.
In sponsoring Measure D, the Citizens for Fair and Balanced Land-use asked that a fair process be put in place in Nevada County—a process that provides for “just compensation” when “regulatory action” converts private property to public use. Using California’s initiative process, CFBL collected over 5,000 registered voter signatures in six weeks to put Measure D on the November Ballot:
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.
Seven easy to understand statements that will have the same impact as California’s Prop 13 did when it reduced property taxes and became the model for similar tax laws across the nation. This initiative, Measure D, has the potential to become landmark legislation by the people.
The opposition, mostly from four County Supervisors, their bureaucrats, former Supervisors, and no-growth environmental groupies, launched a campaign based on a County funded Fiscal Analysis. An analysis that claims Measure D will bankrupt the County. It claims an annual County liability of $3.5 to $10.5 million dollars, plus the need for a $500,000 per year bureaucracy to handle all the takings claims. However, no consideration was given to an option mentioned in the Fiscal Analysis to just stop taking private property for public use, by revising the regulations.
In addition to the US Constitution, Article One, Section nineteen of the California Constitution, is quite clear. “Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.”
CFBL has taken the position that if the Fiscal Analysis is not bogus, it just validates our claim that the County is taking private property for public use. How can the County be liable for $3.5 to $10.5 million after passage of Measure D in 2002, and not have been taking private property for public use in 2001, 2000, 1999…
All we are asking for is a fair process to provide just compensation when County regulations take value from our property. All we are asking is that the Constitutions of the United States and the State of California be followed when making land use decisions. We are not against open space, we just want the government to buy it not steal it.