Stealth Eminent Domain
The trouble is, society doesn't pay for its social causes. The landowner pays first, by not being compensated for the loss and not being able to achieve the best use of his land. Then the homebuilders pay, because each lot costs more since the developer as fewer lots over which to spread his costs. Finally, of course, the new homebuyer foots the bill in higher home costs.
City Council members by definition already have a home in the town, or they wouldn't be on the council. Environmental activists have homes built where habitat once stood. Only the new home buyer doesn't have a home -- or a vote -- in the town yet, so he always gets stiffed
The OC Register editorializes on this today, taking as its cue a particularly nasty case in a particularly nasty town, Brea, in northern OC. Brea has considered 300 acres of land owned by Leo Hayashi in Carbon Canyon [pictured]. Under the Brea general plan that was in effect when Hayashi bought the land, it was zoned for up to 307 homes.
Too many, thinks the city, so they seek "creative solutions" and find a way to get the number of homes they'll let Hayashi build down to 15. In a fit of truly madcap creativity, they then decide to stiff-arm him with a requirement that he put in a fire station and other improvements at his expense, in effect making it impossible to develop his land. But is it an illegal taking without compensation?
The result is to make it cost-prohibitive for him to build virtually anything, but the city argues it would not have to pay for this regulatory heist because it still would allow Mr. Hayashi to build something.Hayashi's land can't really absorb 307 homes -- it's far too hilly -- but the number he can build within the 307-unit limit of the General Plan should be up to him and his engineers, so long as they comply with the extensive environmental and building laws that already over-protect California.
In another case, a habitat conservation plan in the Coachella Valley (Palm Springs area) would allow landowners to build on perhaps 3% of their land. The plan promises compensation, but it is clear that its financial structure is way off and there will be nothing approaching fair market compensation for the hapless landowners.
These "takings" fly under the public opinion that's been howling ever since Kelo; perhaps because the taking isn't 100%; perhaps because the land's not being taken for a condo complex or Walmart; perhaps because it's "just" a land developer that's getting stiffed.
But these are uncompensating takings of private property nonetheless, and Constitutional fairness mandates that government be reigned in and individual property rights protected.
Related Tags: Eminent domain, Kelo, Brea, Property rights