Los Gatos Weekly-Times

Property Rights Bill could pull chill on local decisions

By Jeff Kearns

For a town as preoccupied by growth as Los Gatos, it's probably unimaginable to most people here that local planning and zoning decisions could be taken out of the hands of municipal government and sent to federal court. But with the Property Rights Bill recently passed by the House of Representatives, some say that kind of scenario might become reality if the bill is passed into law by the Senate.

Introduced last May, HB 1534 passed the House in October by a margin of 248-178 and is now in the hands of the Senate Judiciary Committee, which hasn't yet decided whether to send the bill to the Senate floor for a vote.

At issue with the legislation is that property and development disputes would be able to proceed straight to federal court after a defeat at the local level, instead of following the current path of appeal, which can wind through county superior court, state appeals court, state supreme court and federal court.

The bill's opponents say it would undermine the authority of local governments by involving cities and counties in federal suits they could not afford to pursue, which could give an advantage to development companies with deep pockets.

"It's ill-advised," says Rep. Zoe Lofgren (D-San Jose), who led the fight against the bill in the House Judiciary Committee and on the House floor. "This is an unprecedented intrusion of the federal government into local zoning issues, and it puts people at a disadvantage to developers. I don't think the federal government has a role to come in and push cities and counties around on these issues."

Lofgren says the bill could remove the incentive for developers to work out a compromise with local government by giving them the option to take their first denial on a project straight to federal court. "Municipal governments would have to either run up huge legal bills or cave in," she said.

Proponents say the bill is a simply a means to speed up cases and would remove the possibility that disputes could plod on for years through the long appeals process, after which the same decision may be reached, anyway.

Rep. Tom Campbell, whose district includes Los Gatos, Monte Sereno and Saratoga, supported the bill. A spokesman for Campbell said the the bill was drawn up to give an alternative to developers in exercising their property rights. "We're not removing those decisions from the local municipality," he said. "It's about due process, and that's not there when they don't allow the landowner due process without a long process. We're saying, 'Let the court decide.' "

At issue is the Fifth Amendment: "No person shall be ... deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation."

When a developer is deprived by the government of the ability to develop land to its full economic potential, this is termed a "taking." For example, if a city denies a building permit for a building that neighbors consider too big or too intense a use for the area, the owner could claim a "taking" occurred.

The subject of the debate, however, isn't that government should protect property owner's rights, but rather what steps should be taken to do so.

"The founding fathers valued the right to hold and transfer property as so important to democracy that they placed it in the same sentence as life and liberty," said Don Wolfe, mayor of Saratoga and executive director of Silicon Valley Citizens Against Lawsuit Abuse.

"The bill is trying to give due process to everyone by making it easier for people to access their property rights," Wolfe added. "Under the present system, where there are many levels of appeal, it is justice delayed, which is often interpreted as justice denied. Some cases have taken decades to follow the appeals process, where plaintiffs have died in the process or their entire life savings have been wiped out, and the decision for or against them became moot."

Much of the original support for the bill came from the National Association of Home Builders, which considered it a top priority and lobbied extensively on its behalf. As originally introduced, those whose development plans were turned down by a planning commission could have taken their case to federal court before even going before a city council or board of supervisors.

Though the bill was primarily backed by Republicans, at first it enjoyed bipartisan support, according to Lofgren, until many Democrats backed off when it was in committee. "They thought it sounded fair, but when we sorted through it, they decided it wasn't the right thing to do, and many were sorry they sponsored it."

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