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Sunday, April 23, 2006
Land locked in Brea
Brea city officials will allow Leo Hayashi to keep his acreage in Carbon Canyon. They just won't allow him to build much on it. So who really owns it?
Brea city officials are perhaps the most hostile to property rights among all the governments in Orange County, given their longtime advocacy of eminent domain in their downtown area, their use of hundreds of thousands of tax dollars to fund a public-relations campaign to stop the development of new houses on noncity property straddling the Orange and Los Angeles county line and their quixotic lawsuit against plans to build a reservoir at an old Boy Scouts ranch in the hills.
But the city's latest efforts are strikingly totalitarian, even given the low standard set there. Officials are trying to rob several property owners of nearly the entire value of their land in an area of Carbon Canyon separating Brea from Chino Hills. The word rob is accurate. The city is proposing to downzone the property - i.e., reduce the number of houses that can be built on the acreage - without paying compensation.
The city's general plan had allowed the development of 1,685 housing units in the area, down 30 percent after it had downsized the number of properties in 2001. Now officials want to allow only a total of 103 houses on the land. Three owners would be particularly hard hit, losing 95 percent of the development potential of their property. Those owners would be allowed to build 29 houses on 814 acres - an absurd limit of one house per 28 acres.
Officials claim the downzoning is to deal with the steep topography, but that's nonsense. Private owners and their engineers can determine the right number of homes that can be built in the canyon. The real goal is to set aside open space.
Let's say you buy a property on which to build your dream house in an area planned for such construction. Then officials decide that they want your land to be open space. They don't have the money to take it by eminent domain, which would require them to pay you "just compensation," so they allow you to keep the title and pay taxes on it, but pass restrictions that forbid the construction of anything on the property other than a shed.
What would you think?
Leo Hayashi, one of the three landowners, bought 700 acres in the 1970s to create a hot springs resort, sold off a portion of the property and now has 300 acres that he wants to develop. He has painstakingly tried to comply with numerous restrictions on development, but the rules keep changing.
The number of permitted units keeps going down. Even developing that handful of properties will not be feasible, given that the city is imposing new costs to build anything - i.e., requiring the construction of a new fire station and other infrastructure. Clearly, the city's goal is to make it impossible to develop the land so that it can gain open space for free.
"The city tells me it has the power to do this without paying me because it is not taking the property outright," Hayashi said. "But practically they are taking it. There is no future. It's an extreme inequity. I've been paying taxes on this land for 30 years. They should at least give me condemnation."
As much as I hate eminent domain, such a policy would at least be more humane, in that the owner would get some compensation for the property.
The city's general plan seems to encourage such abuses of power: "Without financial resources to purchase the properties worthy of permanent open-space status, the city must look to creative approaches."
The city claims that the property owners don't have any entitlement to build the maximum number of houses allowed under current zoning. True enough, but then why did the city require property owners in the area to spend tens of thousands of dollars to build water lines and sewers to service the houses?
City planner David Crabtree told the Brea Star-Progress recently that the city's goal is to allow development that "takes into account community values, public safety and the physical characteristics of the land." But if the city wants the land to prop up what it considers "community values," then the city ought to pony up the cash to pay for it.
"It's a quality-of-life issue," local environmentalist Claire Schlotterbeck told the paper. "We, as humans, need places of rest and recreation and people like to rest their eyes on a natural ridgeline."
Well, we as humans also need to enjoy freedom, and that includes the freedom to invest in property without having to worry that a city will use "creative approaches" to take it. Perhaps if Schlotterbeck is serious about open space, she will donate her property to the public rather than back the theft of her neighbors' property.
Brea taxpayers better gear up to pay big dollars after this one eventually goes to court. As Hayashi's attorney pointed out in a letter to the city, the state and federal constitutions prohibit takings without compensation, but the courts decide whether compensation is due when the regulation "deprives the owner of something short of all economically beneficial use."
The law provides certain protections, although this case makes it clear that the protections need to be more solid, especially in cities such as Brea where officials don't care much about private property. The Protect Our Homes Initiative (www.protectourhomes2006.com), an ongoing ballot drive that primarily targets eminent-domain abuse, would also require payment of compensation in these cases where government is trying to use regulations to take property while still allowing the "owner" to hold the land's title. Perhaps the Carbon Canyon situation will be the signature-gatherers' rallying cry.
Recently, the Oregon Supreme Court upheld a state initiative there that requires compensation for regulatory takings, and Washington state activists are pursuing a similar measure there. The time also has come for change in California.
Hayashi told me he doesn't know why the city is trying to make his land "worthless by regulation."
It is no secret that Brea city staff and City Council - Mayor Roy Moore and council members Marty Simonoff, John Beauman, Bill Lentini and Don Schweitzer - have embraced a trendy left-wing development ideology called Smart Growth. The goal is to create old-fashioned communities by building an urban core, banning development on the outskirts of the city, and forcing developers to build mostly townhouses, apartments and other high-density housing. I'm guessing that many of the supporters of this ideology already have their homes in the hills!
In Brea, the city bulldozed its old downtown to create a new one, using eminent domain and subsidies. City officials are making it as difficult as possible to build suburban homes on the surrounding hills even as they encourage the creation of high-density housing.
"We need to get the public input from the Planning Commission and property owner input, analyze what will come out of that and decide how we can be fair to all parties, and that includes the public at large and the property owner," Councilman Marty Simonoff, an Assembly candidate, told me. Not exactly a defense of property rights, although it is better than what his council colleague Beauman wrote in a 2004 newsletter, where he argued the city can mostly do what it chooses with private property as long as it promotes the "general welfare."
How would you like to live in a world where city officials can take whatever they want and don't even have to pay compensation if they justify the taking in the name of the greater good? If you live or own property in Brea, you already live in that world. Invest or move there at your own peril.
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