PLF challenges Marin County’s extortionate “affordable housing fee”

PLF challenges Marin County’s extortionate “affordable housing fee”

SAN RAFAEL, CA;  August 17, 2016: An elderly couple has sued Marin County for being forced to pay an extortionate “affordable housing fee” of nearly $40,000 for permission to split a roughly three-acre residential lot into two lots.  The land in unincorporated Marin County, north of San Rafael, has been in their family for more than 60 years and they split the lot to use the proceeds to build their long-planned family retreat.

Larry G. Salzman Attorney Damien M. Schiff Principal Attorney

In the challenge, filed this week in Marin County Superior Court, Dart and Esther Cherk of Mill Valley are represented by attorneys with Pacific Legal Foundation (PLF), a national property rights watchdog organization.  Donor-supported PLF represents the Cherks free of charge, as with all its clients.

At issue is a $39,960 fee the county imposed pursuant to Marin County Code Section 22.22.090 to fund “affordable housing.”  According to U.S. Supreme Court precedent, regulators may impose fees as a land use permit condition only to the extent they mitigate for some adverse public impact from the proposed land use project.  However, the Cherks’ lot split does not increase the need for affordable housing.

“Local governments are increasingly abusing the permit process to make unlawful demands of property owners while they are in a vulnerable position,” said Larry Salzman, a PLF attorney representing the Cherks.  “There is no connection between the Cherks’ lot split and the lack of affordable housing in Marin.  In fact, by increasing the supply of buildable lots in the area, the Cherks are doing their part to help solve the lack of housing here.”

Indeed, originally the Cherks sought permission to subdivide the parcel into four lots and create a project of genuinely affordable housing.  But without any interest or support from the county, ultimately the Cherks agreed to a plan of creating just two lots.  Yet the county still insisted on charging them the stiff affordable housing fee — which they paid under protest, having to take out a loan against their own house to raise the money.

An oppressive demand with no justification

“We are suing the county because its oppressive financial demand on the Cherks is a flagrant violation of their constitutional rights,” said PLF Principal Attorney Damien Schiff.  “The Supreme Court has said clearly and consistently that land use authorities cannot impose punitive conditions or demands for money that have no relationship to the proposed land use project.  In other words, the permit process cannot be used as a shakedown machine.

“The injustice to the Cherks was even worse,” Schiff added, “because the Cherks were dealt with more harshly than some other area landowners.  Even while the county was imposing a crushing financial demand on the Cherks, it was waiving the fee for some other property owners in the area who were also subdividing.  So we have the county violating Equal Protection guarantees as well as the Constitution’s safeguard for property rights.”

“I feel damaged”

“It’s very disappointing that the county resisted our initial subdivision plan for four lots, a plan that emphasized affordability,” said Mr. Cherk.  “But we had to go ahead with what they would permit — we couldn’t afford not to.  However, when they told us that the subdivision they would approve would require a $40,000 fee, it was a blow.  This was $40,000 that we didn’t have.  We were able to pay it only by going into the red.  Our house had been owned free and clear, but now we are in debt and under pressure to repay that debt, all because we had to raise the money to pay the county’s fee.  I feel damaged by this whole punishing process.”

The case is Cherk v. County of Marin.  More information, including the opening legal filing, avideo statement, podcast, and photos are available at:  www.pacificlegal.org.

About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation (PLF) is the leading watchdog organization that litigates for limited government, property rights, and individual rights, in courts nationwide.  PLF represents all clients free of charge.

The king owns the land

The king owns the land

This was extremely clever, and a pivotal moment in the development of common law. Remember the pyramid of land holding and obligations? William decreed that, instead of relying only oaths, he would personally enforce property rights as owner. In the past, if a dispute arose between two property holders, they (and allies) settled it themselves. As owner of the land, though, William promised to use his armies to make sure that those who swore fealty honoured their oath. His superior right of ownership would let him enter land and end the dispute. Although you might suspect that English lords were offended when the king said, "Your land is now owned by me," it wasn't really too different than what they already knew. While William owned the land, land holders would still enjoy most of the rights they had before. For those already high on the food chain, this was a good deal: As long as they kept their oaths of fealty to the king, they didn't have to worry about those underneath them. The king would back them. For William it was political gold, because, as owner, he could reassign property. Just like a landlord can evict a lousy tenant, the king could "evict" a rebellious baron or earl. If you were the king's friend, and I was the king's enemy, the king could simply turn to you and say, "Kent's lands are now yours. If you need my help removing Kent, I'll gladly send in my troops." Now, I would be lying if I suggested that everyone was immediately happy with this arrangement. But William became Duke of Normandy at age seven, and by the time he took the English throne, he had lived through three murder plots and had 31 years' experience putting down rebellions in France. Those lords who didn't like the new arrangement faced William's sword and having their lands divided among William's supporters.

King William the Conqueror

Editors Note:  Just like the Kings of old,  planners want to diminish the rights of private property rights in favor of regional planning and central government.  This is at odds with our Constitutional liberties and a dangerous trend for democracy.

Relax Environmental Red Tape?

You gotta have a chuckle listening to these guys justify ignoring responsible environmental planning for their "Smart Growth" projects.  They sound like any other business people crying "unfair" when the rules are difficult for them. 

The earth and the community does not care whether the negative environmental impact is caused by "for profit housing" or "non profit housing" , "smart growth" or "subdivisions".  Irresponsible environmental policy makes us all poorer.

The point of CEQA is to protect the earth. It is not to penalize developers.  We should not have special exemptions for "smart growth developers".   Is there really a difference when protected species die when an affordable housing is built vs for profit housing?

They also reveal the tactic of changing "red tape" as an essential legal strategy to shift the legal burden to the county to avoid legal action by the "pesky NIMBYS" that may have a problem with their development.  So according to them, low income, Smart Growth developers should have special legal protections not available to ordinary citizens or private developers.

In this video they acknowledge that high density infill development DOES CAUSE MORE POLLUTION AND TRAFFIC.   Somehow, they feel they should get a free pass because they are keeping pollution out of areas they didn't develop.

Some logic.

Do we really want these fools bringing pollution and traffic into our community so they can make a quick buck?

Bay Area Citizens outside the Court on June 12, 2014. Round 1 Bay Area Citizens vs. Plan Bay Area.

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3 Absurd Reasons for Banning Drugs

Is Marinwood-Lucas Valley the Supervisor's "Diversity Solution" for Marin?

Diversity can be yummy when people are free to choose.

Editor's Note: Is Marinwood-Lucas Valley the "diversity solution" for the County of Marin?  The article below cites an agreement by the County and HUD to improve diversity and receive Community Block Grants.

Why then should the politicians and planners be allowed to concentrate 71% of all affordable housing in the 5.78 square miles in Marinwood-Lucas Valley?   

Isn't the rest of Marin being NIMBY when they do this?

 

 

The Bay Citizen

Marin Agrees to Seek Out Minorities

 By AARON GLANTZ

See article in New York Times 1/8/2011

 

Marin County has agreed to research why it has so few minority residents relative to the rest of the Bay Area and to take specific actions to attract more low-income people and ethnic minorities to the affluent county, which is more than 80 percent white.

      

The agreement, signed last month with the United States Department of Housing and Urban Development, came more than a year after the agency found that the county failed to comply with Title VI of the 1964 Civil Rights Act and two other antidiscrimination statutes.

      

The review found that Marin County’s federally financed affordable-housing programs failed to reach out adequately to minorities and people with disabilities, failed to adequately track which ethnic groups were benefiting from those programs and failed to take steps to ensure that low-income and minority residents were not pushed out.

      

“The jurisdiction has an obligation to take actions that affirm housing is fair and that there’s choice,” Charles E. Hauptman, regional director for fair housing and equal opportunity at HUD, said in an interview.

      

In its report, HUD noted that “even among its relatively small minority population, persons of black race and Hispanic ethnicity are largely clustered in two minority-impacted census tracts,” blacks in the housing projects of Marin City and Hispanics in the canal zone of San Rafael.

      

Roy Bateman, community development coordinator for Marin County, said the county’s failure to track the race of those who benefited from federal money and to carry out systematic and multilingual outreach campaigns stemmed in part from the relatively small amount of money it received for affordable housing.

      

Last year, the county received approximately $1.7 million from Community Development Block Grants and $1.2 million from the federal HOME program to build and maintain affordable housing.

But John Young, director of Grassroots Leadership Network of Marin, said additional oversight was needed. County officials, Mr. Young said, “have these old-boy networks” resulting in the same people getting the same opportunities.

      

Mr. Young said his biggest battle was with neighborhood groups that did not want affordable housing built near them. “Nobody wants it in their backyard,” he said, and politicians are often willing to placate them.

      

Mr. Bateman bristled, however, at the suggestion that Marin lawmakers were racist because they rarely approved new developments.

      

“We are a slow-growth area where every type of development meets with resistance,” he said. “Right now, there’s a big fight over whether to allow Target to come to San Rafael.”

 

 

      

Will you Help? Understanding the legal aspects of the Housing Element for Marinwood-Lucas Valley.

Marinwood-Lucas Valley in the 1930s by George Otis Dement

 

We have found the relevant Government Code Section for Affordable Housing and we need help understanding it.  If you are so inclined to help us understand how it may apply to our situation in Marinwood-Lucas Valley , here it is.

Over 71% of all affordable housing for unincorporated Marn has been identified for locations in Marinwood-Lucas Valley.  Despite our tiny size of 5.78 square mile we may be forced to take these non profit high density projects that contribute almost nothing to our tax base.

Unlike private developers who pay mitigation fees to the community for infrastructure upgrades, the taxpayers are asked to pay millions for the non-profits developer. 

If after reviewing this government code you have legal observations to share, we would like to hear them. We do not have much time. The Board of Supervisors may approve the 2012 Draft Housing Element soon. We are not so much seeking specific legal advice now as a better understanding of the law and how it may affect us.

Please email your thoughts to savemarinwood@gmail.com

Bureacrats Gone Wild in Marin Meeting March 20th

See this article by Nels Johnson from the Marin IJ about the Citizen Marin meeting held at the Al Boro Center on March 20th.  Also review the comments following the article.  It contains some inflamatory and defamatory claims about this website and the people of Marinwood-Lucas Valley.

Bureaucrats Gone Wild in Marin

VIDEO: Surveillance Cameras get Smart

More creepy surveillance cameras.  San Francisco has 71 of these cameras "to combat violent crime".  The whole idea that government needs this level "control" of civilians is straight from Orwells 1984.  Big Brother is watching. Just like any law abiding citizens,  we are happy when crooks get caught.  But the fact of the matter is, 99% of the population are not criminal and we are sacraficing our liberty and privacy for a moderate improvement in crime deterance. 

Now, it is possible to surveil our emails, our cellphones, traffic cams, license plate recognition, health records, web traffic, vehicle mileage tracking, etc. etc. etc. In congress, they are talking about DOMESTIC drones to fight crime. The executive branch wants to reserve the right to attack civilians on U.S. soil, drawing objections from from Congressman Ron Wyden (D) of Oregon and Rand Paul (R) of Kentucky.

What happens when the definition of "crime" changes?  How much control do we want over innocent civilian's lives?  Should all privacy be abolished for "public safety" ?  We are allowing the tools of tyranny into lifes. 

Dispatch from Palo Alto: Local People Fight ABAG housing numbers

Bold leaders are fighting the taking of our communities by ABAG, HCD, HUD and other power hungry bureacracies.

Editor's Note: The housing allocations in Marinwood-Lucas Valley are totally out of scale with the actual need and legal requirements of the community.  What sense does it make to concentrate 71% of all affordable housing in unincorporated Marin in a single 5.78 square mile community of Marinwood-Lucas Valley?  We are only 2% of the total population.

We cannot afford to carry the burden of a housing development which will pay miniimal taxes to support 83 families and their estimated 150 school children in the Dixie school system for the rest of Marin.  We currently pay about $10,000 per student making the total annual burden of $1,500,000 for at least 55 years. 

Clearly this is unworkable but came as a surprise to Marin County planners and politicians.

We can do better.

Palo Alto is fighting back. 

Our very future as a livable, affordable community is at stake. 


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Local comments on the ABAG housing story printed earlier this week.

The real issue was not the division of the regional allocation among the local cities but the size of the allocation made by the Department of Housing and Community Development (HCD) to our council of governments (ABAG). ABAG and HCD settled on a base allocation for the Bay Area of a total number of housing units that is 15% above the forecast amount that the Demographic Research Unit of the Department of Finance is currently using; the discrepancy grows to 40% by 2040. ABAG refuses to discuss this discrepancy, allowing local governments to send in appeals based only on the regional allocation process of the California Code relevant to the Housing Law (Section 65584.04 and 65584.05). 

 But the full section of the Code clearly says that the housing numbers for each region will be determined only in a wider context. Section 65584.01 starts with the statement: "The department's (Housing and Community Development) housing determination shall be based upon population projections produced by the Department of Finance...". This section goes on to say that HCD and the councils of governments (ABAG) can appeal for a change in growth but says that the final decision will be made by the Demographic Research group at the Department of Finance.

 

The Code also clearly says that local governments have the right to appeal the decisions of the council of governments or HCD. Section 65584.2 says: "A local government may...appeal regarding allocation data provided by HCD or the council of governments pertaining to the locality's share of the regional housing need or the submittal of data or information for a proposed allocation, as permitted by this article." [Bold added]. These two parts of the Code say pretty clearly that the demographic forecast of the Department of Finance are critical to the process when there exists a disconnect between the Department of Finance and HCD and that local governments have a right to appeal the use of selected data that are used to calculate regional housing needs.