By [post_author] –
Posted on Freedom Advocates on April 24th 2008
Summary: Known as the bastion of progressive liberal thinking, Santa Cruz, California has become totalitarian in its approach to land use planning and property rights. Those who curry favor get permits and those don’t get punished.
Originally published June 2000 Viewpoint
FULL TEXT : Santa Cruz County is a lovely coastal community located 62 miles south of San Francisco. It is the gateway to the Monterey Bay National Marine Sanctuary and brags about 29 miles of coastline, world-class surfing, and over 43,000 acres of maintained public lands and park lands, including miles of challenging trails for equestrian and mountain bike users.
The largest employer in Santa Cruz County is the University of California, followed by the county government. Influenced by the University’s philosophy, Santa Cruz is well known as an extremely liberal community.
Over time the community has displayed socialist and totalitarian leanings when it comes to private property rights and land use planning. Those who are “in” and “favored” reign, while those who are not are forced out of the community by government’s use of methods such as favoritism and selective enforcement.
Property owners have been run out of business because they could not obtain necessary permits. Many are forced to sell to a conservancy group at a great loss. Later, once the property owners are long gone, the conservancy is awarded all necessary permits. This restores the value of the property.
This kind of activity is not uncommon. It is difficult to understand how those who are favored have no problems whatsoever and those who are not have their properties red tagged even though their units may be up to code. In fact, the county is full of illegal or non-permitted structures which have not been targeted.
County Supervisors are well known for expressing displeasure with those they are out to “nail” or drive away. Frequently, political or philosophical vindictiveness is aimed at someone who supported the opposing candidate or refrained from supporting the winner.
County employees blatantly ignore trespassing laws while conducting property inspections. In addition, fees are imposed for all of the time spent by government concerning private property. This includes all internal and external meetings, as well as all time spent harassing the property owner whether or not the motivation was justified. When there is staff attrition, everything starts all over again. In order to cover these anticipated expenses, the county often requests a blank check from the property owner seeking a permit.
The county regulators frequently fabricate their charges and attempt to break down the property owners in the process. This appalling behavior by government toward property owners does not belong in a free country.
One of the grossest cases involves Frank and Ellen Kloster, who in 1978 were able to obtain two building permits from the City of Santa Cruz for structures that would combine as a duplex. The purpose of this property was to provide rental income for the Klosters’ elderly years. At the completion of construction, they obtained their final inspection from the Building Department and awaited their Certificate of Occupancy. Everything was proceeding as planned–so they thought. Then the Planning Department, which lacked jurisdiction at that time, got into the act and prevented the issuance of this ministerially required occupancy permit. As a result, the city proclaimed the Klosters to be “permit violators who deserved to be punished.” It didn’t stop there. The city disconnected the water, sewer, and electrical lines to ensure that the dwellings would not be used. The two dwellings have remained vacant for over 20 years.
Despite the fact that the city has denied the Klosters all economical and viable use of their property, the Klosters have been required by the county to pay annual property taxes in the amount of $2,558 based on the full value of their property (as if it were being used). The Klosters have been paying these property taxes out of their $10,940 annual income from Social Security. Unfortunately, there are no pro bono legal services in Santa Cruz to assist property owners oppressed by government.
Even after the Klosters obtained a successful court ruling as to one of the structures, the city then demanded a new inspection and insisted that the property be brought up to current code standards. The Klosters twice have unsuccessfully challenged the unfair tax imposition, only to be told that the removal of the restriction is within their power (even though not within their financial resources) and that they could comply with the city’s requirements.
Revenue and Taxation Code § 402.1 provides in part as follows:
“(a) In the assessment of land, the assessor shall consider the effect upon value of any enforceable restrictions to which the use of the land may be subjected…
“(b) There is a rebuttable presumption that restrictions will not be removed or substantially modified in the predictable future and that they will substantially equate the value of the land to the value attributable to the legally permissible use or uses…
“(g) It is also hereby declared that the further purpose and intent of the Legislature in enacting this section…is to avoid an assessment policy which, in the absence of special circumstances, considers uses for land that legally are not available to the owner and not contemplated by government…”
Under the subject court rulings, the Klosters would have to waive their constitutional rights before qualifying under Section 402.1. The courts have held that a Certificate of Occupancy is a vested right once the final inspection is completed.
Even with this discouraging background, there is light at the end of the tunnel for the Klosters and other Santa Cruz property owners. On February 23, 2000, the United States Supreme Court handed down its lightly publicized decision in Village of Willowbrook v. Olech.
In this case, Mrs. Olech and her late husband had lost their water source–an old well. They requested the Village to attach them to municipal water but the Village imposed a condition that they first grant a 33-foot easement. The customary easement was 15 feet. The Village wanted to widen the road in front of the Olechs’ property. The Olechs refused and eventually the Village relented. In the meantime, the Olechs had no water and consequently suffered damages.
Mrs. Olech brought suit alleging the Village had denied them equal protection under the Fourteenth Amendment. She alleged that the Village had “substantial ill will” toward the Olechs because of an earlier suit they had won.
In ruling, the United States Supreme Court answered the question of whether the Equal Protection Clause would protect a “class of one” holding that the number of individuals in a class is immaterial. The Court further held that the plaintiff had an equal protection claim when alleging that she was “intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.”
The Seventh Circuit Court of Appeals also had ruled that the Olechs sufficiently alleged baseless hatred. Citing a 1995 California case, the court held that “a plaintiff can allege an equal protection violation by asserting that state action was motivated solely by a `”spiteful effort to `get’ him for reasons wholly unrelated to any legitimate state objective.” The Supreme Court found it unnecessary to reach this issue relying on the “irrational and wholly arbitrary” conduct by the Village.
The delay of the Olechs’ request for water was three months. In the case of the Klosters, it has been over 20 years! The Olech case when applied to the usual conduct of Santa Cruz regulators is the perfect precedent to attack the spiteful and selective conduct regularly exercised in Santa Cruz County. At last, there is a chance to eliminate such unfair and unconstitutional activity. The test now will be whether the courts have the courage to follow this United States Supreme Court precedent in cleaning up the improper practices in Santa Cruz County.
“Santa Cruz – The Gestapo of the West” by Ronald A. Zumbrun
Ronald A. Zumbrun is Managing Attorney of The Zumbrun Law Firm, a Sacramento‑based public issues firm. This article was originally published in the June 2000 Viewpoint.
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