balancing property rights

We believe that the property rights of individuals must be balanced with those of their neighbors. Opponents of development controls argue that people have the right to do as they wish with their property. We agree, up to a point, but there are limits. This is hardly a new concept. Most communities, including Morro Bay, have height limits, setback requirements, and other zoning measures that control homebuilding. At least 110 California communities already have controls that tie the allowable square footage of a home to its lot size, and many have view protection ordinances that restrict development that would obstruct scenic views from neighboring properties.

It is understood that individuals living in a community agree to abide by a set of rules that are for the good of the community as a whole. In return, they receive benefits such as police and fire protection, water and sewer service. Individual community members, can’t always have everything they want, and time and time again, the courts have recognized this fact.

It is our position that individuals should not be permitted to maximize personal property value and quality of life by taking actions that significantly diminish the property values and quality of life of the neighbors. Rights must be balanced.

Consider the following material, quoted from the an article in the Vermont Journal of Environmental Law, Volume 6 2004-2005, Symposium 2005: Regulating Big Box Stores: the Proper Use of the City or County’s Police Power and its Comprehensive Plan-California’s Experience, By Daniel J. Curtin, Jr. The full article is online at http://www.vjel.org/articles/articles/Curtin11FIN.htm

“It is well settled that the state may legitimately exercise its police powers to advance [a]esthetic values. . . . ‘The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical,aesthetic as well as monetary.’” (City Council v. Taxpayers for Vincent (1984) 466 U.S. 789, 805, citations omitted; Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 886.)

Today, aesthetic purposes alone can justify assertion of the police power. (Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 860-861, reversed on other grounds Metromedia, Inc. v. San Diego (1981) 453 U.S. 490.)

“Virtually every city in this state has enacted zoning ordinances for the purpose of improving the appearance of the urban environment and the quality of metropolitan life.” (Metromedia, Inc. v. City of San Diego, supra, 26 Cal.3d at p. 862.)

"The preservation of sunlight has been recognized for nearly 40 years as a valid police-power purpose supporting height limitations. “In the exercise of the police power a local government can impose restrictions on the maximum height of buildings for the purpose of securing adequate sunlight to promote public health in general. [Citation.] And likewise such government can restrict the height of fences.” (Taliaferro v. Salyer, supra, 162 Cal.App.2d 685, 691.)

The goals of this ordinance are further supported by settled case law as preserving the character of a neighborhood, since they prevent incremental tree growth which would otherwise alter preexisting vistas and receipt of light. (Thain v. City of Palo Alto (1962) 207 Cal.App.2d 173, 187 [weed abatement]; People v. Greene (1968) 264 Cal.App.2d 774, 778; Guinnane, supra, 209 Cal.App.3d 732, 742-743 [parking, traffic and visual impact]; cf. Novi v. City of Pacifica (1985) 169 Cal.App.3d 678, 682 [preventing visual monotony or “‘ticky-tacky’ development”].)

A denial of a building permit under a view protection ordinance enacted “‘[t]o protect the visual quality of highly scenic areas and maintain the rural character’” of a city (Ross v. City of Rolling Hills Estates (1987) 192 Cal.App.3d 370, 374, fn. 2) was upheld against a claim of abused discretion, the court noting proper reliance on the goal of protecting the character of the area and a finding of unmitigated adverse impact on existing views (id. at pp. 376-377).

We hold the Tiburon ordinance is directed toward a valid police-power goal-to preserve views and sunlight. Tiburon’s choice of regulating obstructing trees and tree growth obviously bears a reasonable relationship to the achievement of those goals. (Metromedia, Inc. v. City of San Diego, supra, 26 Cal.3d 848, 865.)”

The issue of property rights, as related land use controls for the community good, is covered very effectively in remarks made by Tim Dowling, Chief Counsel of a Community Rights group in Virginia. Here are some quotes from the article, which is located at: http://www.communityrights.org/PromotesSmartGrowth/LoudounCty9-28-00.asp

“The perceived risk of takings liability is more myth than reality. In a 1973 treatise published by the Council on Environmental Quality called The Taking Issue, the authors wrote: "Since the 'myth' of the taking clause assumes that less can be regulated than the court decisions actually permit, many local governments fail to exercise their powers -- or if they do, they back down easily when challenged." “

“The perceived risk of takings liability is more myth than reality. In a 1973 treatise published by the Council on Environmental Quality called The Taking Issue, the authors wrote: "Since the 'myth' of the taking clause assumes that less can be regulated than the court decisions actually permit, many local governments fail to exercise their powers -- or if they do, they back down easily when challenged." “

“Developers often argue that they have a constitutional right to develop, in other words, an absolute, constitutional right to build on property. But there is no such constitutional right. In the 1994 Dolan case, the Court referred to a development permit as "a discretionary benefit," in other words, something left to the discretion of the municipality, not compelled by the Constitution. For example, counties may and do adopt agricultural zoning ordinances with no right to build houses or commercial buildings. So long as the agricultural zoning does not approach a denial of all economically viable use of the land, there is no taking under the Fifth Amendment”

“The development community often ignores the specific rulings in these cases, preferring instead to quote isolated portions to mount a rhetorical campaign against land use controls. One favorite developer quote -- you may hear it here tonight -- is a passage from the Dolan case in which the Court says that the Takings Clause is as much a part of the Bill of Rights as other important amendments and should not be treated like a quote "poor relation."

The Court has never deemed every property right to be a fundamental right on a par with free speech rights or other fundamental constitutional rights. On the contrary, the Dolan Court itself emphasized that land use planning is a "necessary" and "commendable task," and that the Takings Clause serves only as an "outer limit" on the government's ability to protect the public interest. Every constitutional provision should be applied within its appropriate scope. The Takings Clause is no poor relation, but neither is it a rich uncle entitled to expansion beyond its proper limits.”

“The overwhelming majority of property owners in the United States are homeowners. Their property values are greatly enhanced by local zoning and other land use controls. An aggressive use of the Takings Clause to undermine land use controls does not promote property rights generally, but rather promotes the property rights of a select few at the expense of the majority of property owners.“

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	Balancing Individual and Community Property Rights
		We believe that the property rights of individuals must be balanced with those of their neighbors. Opponents of development controls argue that people have the right to do as they wish with their property. We agree, up to a point, but there are limits. This is hardly a new concept. Most communities, including Morro Bay, have height limits, setback requirements, and other zoning measures that control homebuilding. At least 110 California communities already have controls that tie the allowable square footage of a home to its lot size, and many have view protection ordinances that restrict development that would obstruct scenic views from neighboring properties. It is understood that individuals living in a community agree to abide by a set of rules that are for the good of the community as a whole. In return, they receive benefits such as police and fire protection, water and sewer service. Individual community members, can’t always have everything they want, and time and time again, the courts have recognized this fact. It is our position that individuals should not be permitted to maximize personal property value and quality of life by taking actions that significantly diminish the property values and quality of life of the neighbors. Rights must be balanced. Consider the following material, quoted from the an article in the Vermont Journal of Environmental Law, Volume 6 2004-2005, Symposium 2005: Regulating Big Box Stores: the Proper Use of the City or County’s Police Power and its Comprehensive Plan-California’s Experience, By Daniel J. Curtin, Jr. The full article is online at http://www.vjel.org/articles/articles/Curtin11FIN.htm “It is well settled that the state may legitimately exercise its police powers to advance [a]esthetic values. . . . ‘The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical,aesthetic as well as monetary.’” (City Council v. Taxpayers for Vincent (1984) 466 U.S. 789, 805, citations omitted; Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 886.) Today, aesthetic purposes alone can justify assertion of the police power. (Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 860-861, reversed on other grounds Metromedia, Inc. v. San Diego (1981) 453 U.S. 490.) “Virtually every city in this state has enacted zoning ordinances for the purpose of improving the appearance of the urban environment and the quality of metropolitan life.” (Metromedia, Inc. v. City of San Diego, supra, 26 Cal.3d at p. 862.) "The preservation of sunlight has been recognized for nearly 40 years as a valid police-power purpose supporting height limitations. “In the exercise of the police power a local government can impose restrictions on the maximum height of buildings for the purpose of securing adequate sunlight to promote public health in general. [Citation.] And likewise such government can restrict the height of fences.” (Taliaferro v. Salyer, supra, 162 Cal.App.2d 685, 691.) The goals of this ordinance are further supported by settled case law as preserving the character of a neighborhood, since they prevent incremental tree growth which would otherwise alter preexisting vistas and receipt of light. (Thain v. City of Palo Alto (1962) 207 Cal.App.2d 173, 187 [weed abatement]; People v. Greene (1968) 264 Cal.App.2d 774, 778; Guinnane, supra, 209 Cal.App.3d 732, 742-743 [parking, traffic and visual impact]; cf. Novi v. City of Pacifica (1985) 169 Cal.App.3d 678, 682 [preventing visual monotony or “‘ticky-tacky’ development”].) A denial of a building permit under a view protection ordinance enacted “‘[t]o protect the visual quality of highly scenic areas and maintain the rural character’” of a city (Ross v. City of Rolling Hills Estates (1987) 192 Cal.App.3d 370, 374, fn. 2) was upheld against a claim of abused discretion, the court noting proper reliance on the goal of protecting the character of the area and a finding of unmitigated adverse impact on existing views (id. at pp. 376-377). We hold the Tiburon ordinance is directed toward a valid police-power goal-to preserve views and sunlight. Tiburon’s choice of regulating obstructing trees and tree growth obviously bears a reasonable relationship to the achievement of those goals. (Metromedia, Inc. v. City of San Diego, supra, 26 Cal.3d 848, 865.)” The issue of property rights, as related land use controls for the community good, is covered very effectively in remarks made by Tim Dowling, Chief Counsel of a Community Rights group in Virginia. Here are some quotes from the article, which is located at: http://www.communityrights.org/PromotesSmartGrowth/LoudounCty9-28-00.asp “The perceived risk of takings liability is more myth than reality. In a 1973 treatise published by the Council on Environmental Quality called The Taking Issue, the authors wrote: "Since the 'myth' of the taking clause assumes that less can be regulated than the court decisions actually permit, many local governments fail to exercise their powers -- or if they do, they back down easily when challenged." “ “The perceived risk of takings liability is more myth than reality. In a 1973 treatise published by the Council on Environmental Quality called The Taking Issue, the authors wrote: "Since the 'myth' of the taking clause assumes that less can be regulated than the court decisions actually permit, many local governments fail to exercise their powers -- or if they do, they back down easily when challenged." “ “Developers often argue that they have a constitutional right to develop, in other words, an absolute, constitutional right to build on property. But there is no such constitutional right. In the 1994 Dolan case, the Court referred to a development permit as "a discretionary benefit," in other words, something left to the discretion of the municipality, not compelled by the Constitution. For example, counties may and do adopt agricultural zoning ordinances with no right to build houses or commercial buildings. So long as the agricultural zoning does not approach a denial of all economically viable use of the land, there is no taking under the Fifth Amendment” “The development community often ignores the specific rulings in these cases, preferring instead to quote isolated portions to mount a rhetorical campaign against land use controls. One favorite developer quote -- you may hear it here tonight -- is a passage from the Dolan case in which the Court says that the Takings Clause is as much a part of the Bill of Rights as other important amendments and should not be treated like a quote "poor relation." The Court has never deemed every property right to be a fundamental right on a par with free speech rights or other fundamental constitutional rights. On the contrary, the Dolan Court itself emphasized that land use planning is a "necessary" and "commendable task," and that the Takings Clause serves only as an "outer limit" on the government's ability to protect the public interest. Every constitutional provision should be applied within its appropriate scope. The Takings Clause is no poor relation, but neither is it a rich uncle entitled to expansion beyond its proper limits.” “The overwhelming majority of property owners in the United States are homeowners. Their property values are greatly enhanced by local zoning and other land use controls. An aggressive use of the Takings Clause to undermine land use controls does not promote property rights generally, but rather promotes the property rights of a select few at the expense of the majority of property owners.“ Return to home page