A couple of senior citizens in California wanted to subdivide their three-acre property, earning them some cash while providing additional housing in their Marin County, California, neighborhood, where bedroom costs are exorbitant.
So the local government charged them a nearly $40,000 “affordable housing fee.”
Even though there’s no connection between the couple’s plans and the need for “affordable housing.”
Dart and Esther Cherk of Mill Valley responded with a lawsuit filed on their behalf by the Pacific Legal Foundation.
“At issue is a fee for $39,960 the county imposed pursuant to Marin County Code Section 22.22.090 to fund ‘affordable housing,'” the legal team said. “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.”
See a description of the case:
“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 lawyer who is working on the case.
“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,” he said.
The Cherks sought permission to subdivide the parcel into four lots and create a project of “genuinely affordable housing.”
The county wasn’t interested.
“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,” the foundation said.
“We are suing the county because its oppressive financial demand on the Cherks is a flagrant violation of their constitutional rights,” said Damien Schiff, the foundation’s chief lawyer.
“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.”
In a statement released by PLF, Cherk said: “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 complaint explains, “The Cherks contend that the county’s action was unlawful because there is not a reasonable relationship between the fee imposed and any public impact on affordable housing of the Cherks’ land division, as required by Government Code section 66001.”
The lawsuit seeks an order that the fees are unconstitutional, a refund and appropriate legal fees.