Will California impose a ransom plan for developers?
By ANTHONY L. FRANCOIS
For the Capital Press
California struggles with recognizing property owners' freedom to develop their land. Anything from a remodel to a subdivision can cost you far more than you imagined it would; some property owners end up wishing that the proverbial arm and a leg was enough.
And if the local government is reasonable in its permit demands, there is always an environmental group or union using the California Environmental Quality Act, or CEQA, to exact more.
The California Legislature may take it a step further, with Assembly Bill 823, authored by Stockton Democrat Susan Talamantes Eggman. AB823 would hold all developers of agricultural property for ransom: no permit unless they put new farmland into production, and donate the new farm property's development rights to the government or a land trust. The bill is supported by the American Farmland Trust, which would stand to benefit from forced donations of property, and is opposed by the California Building Industry Association, which wants to avoid increased development costs and barriers.
Under AB823, you could have to "donate" an acre or more of development rights from someone else's farm for every acre of farmland you develop. Alternatively, you could be forced to pay enough money that the government could acquire the other farmer's development rights.
This still being America, the Bill of Rights places limits on what governments can demand when you apply for a development permit. According to the U.S. Supreme Court, concessions must be appropriately related, and roughly proportional, to any actual harm that your development will cause. Beyond that, permit conditions turn into extortion, as the court puts it.
This rule prevents individuals from being singled out to bear costs and burdens that should properly be shared by an entire community, in much the same way that the government has to compensate you when taking your home to build a freeway.
Until now, local governments have not been compelled to require conservation easements under CEQA, despite demands from the Sierra Club, Save the Bay, and the like. Courts have backed cities when they determine that forced acquisition of development rights from other properties would not be feasible. AB823 would take away that local flexibility. Instead, cities and counties would have to extract development rights from other property owners any time a farmer decides to develop.
Farmers develop for a variety of reasons. California farmers have a high and rising median age, and many find that their children have opted for other vocations. Even with federal estate tax reform, many California farms cannot be economically passed on to the next generation. Engineered drought under the Endangered Species Act in the Central Valley and elsewhere has dried up productive farms. The potent combination of state and federal regulation of everything that happens on a farm pushes many farmers to decide the time has come.
In the face of these challenges, AB823 could lock many farmers into their property, instead of giving them a helping hand. The bill claims to help farmers by preserving farmland, but the state should treat them as free people, with the same rights as anyone else in California.
Denying their property rights just because they are farmers does not help agriculture, and certainly does not help farmers.
Anthony L. Francois is an attorney with Pacific Legal Foundation, a watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental regulations.