This is an overview of a situation I have been involved in with San Bernardino County for over a year. For more information see the blog I set up at http://toomuchgov.info. The blog includes links to the emails exchanged, forms involved, and other websites. Most of the same information is also on http://www.too-much-gov.info.
In early 2008 my wife and I purchased a five-acre parcel in Flamingo Heights, a small community a few miles north of Yucca Valley, California. Our intent was to build a small house and spend our winters there, riding our horses and motorcycles in the relatively nice weather.
We hired a contractor, who turned out to be great, and started construction. About half way through the building process we received a request from San Bernardino County to sign a road dedication form that included three roads: the existing ones on the east and west side of the property and a new one, named Boo Lane, on the south side. There was absolutely no need for a new road on the south side of the property, but the county insisted they needed it for future development. This would have been fine, as there is little chance they will ever build the road, but (we learned) once you sign the road dedication form the area covered by it becomes public property and can't (legally) be blocked in any manner.
With the exception of the next road to the south of us, almost all other roads in this community are unpaved dirt roads. We are adjacent to BLM land that is a designated off-road area. So there are a lot of dirt bikes and ATVs that run around this area, and they tend to speed through the little dirt roads. We really didn't want to have a lot of noisy traffic running past the house. We bought this parcel specifically because it was removed from the roads and relatively peaceful.
When we tried to get a waiver to the dedication we were told we had no choice. They based their right to do this on the following section from the San Bernardino County Development Code:
83.05.010
This chapter regulates and controls dedications and the installation of street improvements and trails. The regulations are intended to preserve the public health, safety, and general welfare; to promote orderly growth and development, and to ensure the provision of adequate traffic circulation, utilities, and services.
When I passed this by an attorney he just laughed and said that the words "preserve the public health, safety, and general welfare" are the standard bureaucratese used to slip something in that they really aren’t entitled by law to do...it is kind of hard to come out against public health, safety, and the general welfare of the public.
The next two sections stipulate the following:
83.05.020 Applicability
The requirements of this Chapter shall apply to all subdivision and single-parcel development.
83.06.030 Dedication of Street and/or Highway Right-of-Way
1. Dedications required by approved plans or ordinances. Before final inspection of structures, the dedication of additional street and/or highway right-of-way may, at the discretion of the Director of Public Works, be required to comply with the General Plan, an adopted specific plan, a Local Area Transportation Facilities Plan, or the provisions of any specific ordinance which has established a future right-of-way line.
2. Dedications required in absence of approved plans or ordinances. Where approved plans or ordinances do not exist, the required dedications shall be as follows:
1. Desert Region. In the Desert Region, a 44-foot half width on section lines and quarter section lines and a 30-foot half width on sixteenth section lines shall be required.
Since this is just one house, I guess it is a single-parcel development. And I think that in section 83.06.030 we fall under item (b) which covers dedications required in absence of approved plans or ordinances.
What this seems to imply, and what the county employees I have talked to on the phone seem to back up, is that the county has no plan (and no money) to do anything out here in the desert in the foreseeable future. The timeframe generally mentioned is twenty years, as in “there is no way we will put a road through there in the next twenty years.”
I think it is fairly obvious why the county has taken this approach of basically holding hostage all construction requiring a permit, and extorting a road dedication in exchange for the final inspection and permission to occupy your own house. The Fifth Amendment to the Constitution of the United States of America includes wording that prohibits the government from seizing the property of citizens without due process of law and just compensation. Due process has typically involved condemnation under the right of eminent domain, which is the right of the government to take land for a higher use that is beneficial to more people. But it also gives the property owner his day in court to argue his right to the land and ask the government to publically justify their action. And eventually it requires the government to pay some money for what they are taking.
What this means is that if the county thinks they might want to build roads someday they could either go to the expense of suing individual property owners and paying them some token fee or they can pass a slick ruling such as this one that just takes the land with no time or money wasted on court battles or purchase of the property. I would imagine there was a lot of chuckling in that smoke-filled room when they came up with this idea.
Their justification for by-passing eminent domain is that this action is allowed within the police power of the government, which gives it the right to regulate the use of private property.
Police power is given to the government to protect the health, safety, morals, and general welfare of the public (those words we saw in section 83.05, above). A state may delegate its police power to local governments. The government is not required (as is statutorily required in eminent domain) to compensate the owner for a proper exercise of police power even if the action reduces the value of the property.
Exercise of police power has constitutional limitations that must be adhered to in order to avoid the possibility of violating the constitutional rights of a private landowner. Generally, a land use law or regulation will be deemed constitutional if it meets the following four elements:
1. It is reasonably related to the protection of the public health, safety, moral, or general welfare.
2. It applies in the same manner to all property owners similarly situated (it is not discriminatory).
3. It does not reduce a property's value so much that the regulation amounts to a confiscation.
4. It benefits the public by preventing harm that would be caused by the prohibited use of the property.
I don’t believe that requiring a road dedication for a totally unnecessary road meets elements 1 or 4. Whether it meets element 2 depends on your definition of “similarly situated.” Since it applies only to people who want to build on larger chunks of land or need a building permit for some modification to an existing building, I would say it applies to a minority of citizens in the county, so it is discriminatory. Element 3 is a toss-up, but I’m willing to give it to them. But the bottom line is that this police action meets at most one of the required elements, so is not constitutional.
I am not against progress and I am not against the building of necessary roads. But when I spend several hundred thousand dollars to buy a piece of property and build a house on it, I think I should be told before I purchase the property that this is a known requirement, so I can decide at that point whether the property still meets my needs. Had I been told about this requirement to dedicate a road and open it to public use whether or not the county ever actually builds a road across my property, I would not have bought the property.
Without a final inspection and a certificate of occupancy I can’t legally live in my house nor can I insure it. If it were to burn down or be destroyed in an earthquake I would not only lose everything I invested in it, I would be required by the county to clean up the mess, or pay them around $20k to do so. (I’m basing the last statement on the fact that that is what happened to my neighbor to the south.) And because the government has destroyed the economy, I can’t sell it for half of what I have invested.
The current road grid in Flamingo Heights is laid out on a quarter-mile pattern…that is 1320 feet or two five-acre parcels from east to west and four five-acre parcels from north to south. The area is currently zoned for a minimum parcel size of 20 acres…but that was just a typical government goof. It was and will be again zoned for 2.5 acre minimum parcel size. With that size parcel the current road grid provides access to all parcels. The only reason additional roads would be required is if the area were re-zoned to allow smaller parcels. If that should happen, then I would agree that the people subdividing their property into small lots should be required to give up property for public roads.
At this point the county has dedications for roads on the east and west sides of my property, giving them a bit over 9% of my property for free. This is fine and reasonable. If they took another 30 feet along the south side, they would own well over 17% of the property I paid for, with no compensation and no particular need for the last 8%. This is unreasonable.
After over a year of exchanging emails with county officials, talking to them on the phone, and visiting a few in their offices, the county more or less backed off from the position that I had to sign the dedication because of section 85.03.010 of the county code, and dredged up the fact that the original homesteader received a Land Patent from the Federal Government, and in that patent the government reserved an easement along all four borders. The county maintains that this land patent was turned over to them by the federal government, and that is probably true. So on January 4th, 2010, my wife and I signed the road dedication and delivered it to the county on the 5th. We passed our final inspection on the 11th. We will theoretically have propane on the 18th, and can get on with living in our house.
This battle has ended, but I will continue to work to change the rule that allows the county to take our land in this way and prevents us from at least temporarily blocking public access until such time as the county actually wants to build a road.
I feel that my rights as a citizen of the United States of America are being trampled by the very government that is supposed to be protecting them. I realize that it would be naive of me to believe that individual bureaucrats actually care about my interests (safety, general welfare, etc.) . Once elected or appointed the primary interest of most of them is in keeping their job. It is the greed and general malfeasance of individual bureaucrats at every level that has led this country into the grave economic position it now occupies. But beyond that it is the fault of every American citizen who stood silently, without protest, as their rights were slowly eroded, their money stolen, and their national pride tarnished.
I'm almost 65 years old. I have lived in, worked in, or visited several dozen countries in Europe, Africa, the Middle East, and Asia. There isn’t one I would choose over my own country. Although I am not entirely happy with all the actions of my own government, there isn’t another one I would choose over it. I approve of the concept, if not every detail of the implementation.
When I was young I joined the military, because it seemed like a reasonable contribution to make to my country. When Viet Nam became an issue, I volunteered for service; not because I felt that it was a just war or that it would solve anything, but because I had agreed to subjugate my desires to the wisdom of my government. Turns out I was right and they were wrong, which was a major eye-opener for me personally, but something the government managed to forget about pretty quickly. Since then I have tried to avoid any involvement with the government. But I have come to realize that when we stop holding bureaucrats accountable then we allow them to steal our government from us.