Taking Liberties In The Brea Hills

http://www.ocregister.com/ocregister/opinion/abox/article_1254202.php

CITY OF BREA USES DEVELOPMENT CAPS TO SAVE OPEN SPACE ON PRIVATE
LAND WITHOUT HAVING TO PAY FOR IT

Confused about why Californians so desperately need to pass statewide property-rights protections? Then turn your attention to the city of Brea, which is involved in a long-running and disturbing process to use regulations to greatly diminish the value of private property.

The city doesn't plan to pay the owners of the property anything even as it moves forward on a plan to deprive owners of much of the developable value of the land.

On Tuesday, the city's Planning Commission voted 4-1 to pass new rules limiting what can be built on largely open hillsides within Carbon Canyon, inside city limits.

City officials have expressed repeated desires to "save" the hills from development. But the city's general plan confirmed that the Brea budget isn't big enough to pay for the land city officials want to set aside, so it called on officials to come up with "creative" approaches to stop development there. Such creativity could be called stealing, as officials have proposed rules that would render much of the land worthless.

"I think that we are involved in a taking," Commissioner Ralph Heimann, the lone "no" vote, told the Register.

We've written about Leo Hayashi, who owns 300 acres in the canyon and would be allowed to build about 307 homes under existing rules. The proposed new rules would slash that number to 15 homes, and would require Mr. Hayashi to build a fire station and pay for significant amounts of infrastructure improvements even to build those few homes.

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.

A new city-sponsored report suggests that a larger number of homes could safely be built on the site. Based on topography, the firm that conducted the study said that Mr. Hayashi could build 56 homes on his acreage. That certainly would be a move in the right direction.

But Mr. Hayashi really should be allowed to build under the standards that existed when he purchased the land. Certainly, topography will limit what can be built in a steep canyon area but that should be the decision of Mr. Hayashi and his engineers, not city officials who are using the topography issue as an excuse to stop development, period.

If the city were really interested in safety, there would be no need for the new development caps.

The city already has the regulatory tools to ensure the safety of development on the hillsides, explains Mr. Hayashi's attorney, Michele Staples. The landowners "want the city to use the rules it already has on the books ... to guide development in Carbon Canyon," she said. "But the city does not seem to be interested in ensuring safe and environmentally sensitive development ... . Instead, the city wants to preserve the land for open space, but it doesn't have the money to compensate the landowners."

That takes us to the statewide property-rights initiative on the November ballot, known as Proposition 90, or the Protect Our Homes initiative. The main purpose of Prop. 90 is to stop eminent domain abuse by forbidding cities from taking private property and giving it to big developers for economic development purposes.

The various interest groups allied to stop Prop. 90 knowing they are on the losing end of the eminent domain debate have conceded the need for reform of California's eminent domain laws. But they have been sounding the alarm over a provision in the initiative that requires government to pay property owners for many types of "regulatory takings," claiming that it will cause undue burdens on cities and regulatory agencies.

This is where the situation in Brea is instructive. Governments think nothing of imposing undue burdens on individuals when they impose regulations that take a property's value and leave property owners to eat the costs of those actions.

Prop. 90 doesn't require compensation for regulations related to health and safety. And it doesn't stop governments from taking property through regulatory means for anything, even for saving hillsides.