| by Douglas T. Kendall
Published in the The Press-Enterprise
(Riverside, CA) on Sunday, October 17, 1999.
Exaggerated claims of individual
property rights threaten necessary protections for the
health and safety of communities around the country.
Don't believe this? Consider the challenge that one
developer, Lion's Lair Enterprises, has brought against
Riverside County, in California. It could have
implications for all of us.
Lion's Lair wanted to build a sub-division on a
168-acre plot in a remote, high fire risk location in
Riverside County. The county, in accordance with
California law, required that the developer build a
secondary access road that would act as an escape route
for residents in case of fire. A county fire department
official summarized the need succinctly, saying,
"secondary access... is for the Fire Department to
get to the site, and for the residents to have an
alternative avenue of escape from a fire." It is
hard to imagine a more compelling justification for a
development condition.
Yet the developer challenged this requirement. As in
so many other developer challenges of recent vintage,
from Charleston, South Carolina to Tigard, Oregon, Lion's
Lair asserted that this fire access requirement violated
the "takings clause" of the United States
Constitution ("nor shall private property be taken
for public use, without just compensation").
Specifically, Lion's Lair argued that to impose this
requirement without violating the Constitution, the local
government had to demonstrate that the fire road
requirement met the "roughly proportional" test
the United States Supreme Court set out in a 1994 case
called Dolan vs. Tigard.
This argument boggles the mind. How in the world is
the county supposed to demonstrate that the risks of
multiple, horrible deaths in a wildfire are roughly
proportional with the costs of constructing a fire escape
route? Is the county really supposed to estimate the
value of a human life, estimate the likelihood of death
in a wildfire and compare that to the cost of the road?
Neither the takings clause nor the Supreme Court's
opinion in the Dolan case compels this type of macabre
analysis.
In the Dolan decision a planning commission
conditioned a development permit on receipt of a portion
of Ms. Dolan's property for use as a bikepath, greenway
and floodplain. The dedicated property was designed to
benefit the entire community. In Riverside, however,
state law simply mandated that the developer construct
the access road for the health and safety of the
residents of its own subdivision. The Dolan precedent
plainly does not apply to conditions that are
legislatively imposed and necessary for the health and
safety of the residents of a permit applicant's own
proposed subdivision.
Incredibly, the trial and intermediate appellate
courts have accepted the developer's arguments. The
California Court of Appeals, relying on the Dolan case,
stated that the county must "quantify its findings
in support of the [fire access road]" and show that
the road is "related both in nature and extent to
the impact of the proposed development." Even more
remarkably, the appellate court let stand a trial court
ruling that allowed the project to proceed without the
fire safety restriction. This ruling allows homes to be
built in harm's way. What the trial court should have
done is sent the case back to the planning commission for
an evaluation of whether the development should be
permitted at all without the fire access road.
Not surprisingly, Riverside has asked the California
Supreme Court to overturn the rulings of the lower
courts. The lower courts' errors are so glaring the case
is sure to get the high court's attention. But
Riverside's odds remain long since the California Supreme
Court agrees to hear only a small fraction of the cases
in which its review is sought.
Developers like to portray the property rights debate
as one between small property owners and obscure
endangered species. While absolutist notions of property
rights clearly threaten critical federal environmental
statutes such as the Clean Water Act and the Endangered
Species Act, the threat goes far beyond these laws. In
the Lion's Lair situation, a fire escape route
requirement was struck down. Elsewhere, developers and
corporations are using the takings clause to challenge
regulations on adult entertainment in Florida, corporate
hog farms in North Carolina, billboards in Michigan, and
cigarette vending machines across the country.
The Lion's Lair case illustrates the aggressiveness of
developers everywhere in bringing challenges to land use
regulations and the aggressiveness of certain judges in
expanding the liability of local governments under the
takings clause. The case also demonstrates how claims of
absolute property rights can thwart reasonable and
essential efforts by local governments to protect their
community's' health and safety. After all, if a local
government cannot require a developer to provide a fire
escape route in order to get permission to develop in a
fire-prone area, then exactly what can a local government
do?
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