No to Open Space (Gilroy Rejects Joining Open Space District)

Gilroy - City leaders said Friday that Gilroy will not join the Santa Clara County Open Space Authority, but vowed to explore other options to preserve open space and farmland in and around the city.

Officials gathered at a City Council policy retreat said the deciding factor was the cost of polling and underwriting the special election required to join the authority, which levies a parcel tax to buy property and conservation easements.

“If you’re looking for some enthusiasm on this I’m not going to be able to do it because of the cost of putting it on the ballot,” said Councilman Bob Dillon, who had previously expressed support for the authority.

“I’ll take it one step further. I’m opposed,” Councilman Roland Velasco said. “As far as I can tell, there’s no value added.”

Gilroy is the county’s only jurisdiction that hasn’t joined the authority. Ten years ago, city voters rejected joining the land preservation agency. Now, after 18 months of meetings and negotiations, city council members have determined that there’s nothing to be gained by joining it. Instead, City Administrator Jay Baksa said, the city will work with the Silicon Valley Land Conservancy (formerly the Land Trust of Santa Clara County) and the authority to manage the city’s nascent agriculture mitigation policy, which requires builders to protect an amount of farmland equal to the size of the area they develop.

“The council has said we’ll deal with both of them,” Baksa said. “Knowing what we know, we’re going to hold off for now [on joining the authority].”

For Gilroy to join the authority, voters would have approve a $32 annual parcel tax. The tax would add about $400,000 a year to the authority’s coffers, but only 20 percent of that money would be guaranteed to be spent in Gilroy.

Alex Kennett, chairman of the authority’s board of directors, said Gilroy’s decision will not have much of an effect on the authority’s operations.

“In a sense I feel sorry for them,” Kennett said. “We hoped we could work together and now it won’t happen.”

Come on, California people. This is outright extortion -

"...the city’s nascent agriculture mitigation policy, which requires builders to protect an amount of farmland equal to the size of the area they develop."

This is bullcrap. Dolan should be used to swat these land pirates down.

The US Supreme Court’s ruling in Dolan v City of Tigard is a bunch of muck, but it’s a more clear grade of muck, as it offers relief from over-reaching governments that try to exact tribute when the serfs beg for permission to use their land.

Dolan is a nightmare for so-called environmentalists and “smarxist” growth advocates for it sets stringent, complex and interconnecting rules and tests when regulating private property.

In a nutshell, Dolan tells local and state governments four things:

- One, don’t arbitrarily take private property as a condition for a permit or zoning. That’s a “taking” under the 5th amendment and governments must pay the private property owner compensation. This common sense principle was firmly set in a previous court ruling and reaffirmed in this case.

- Two, if governments demand a tribute (exaction) for a development or permit, it must be reasonable and a rough equivalent to remedy matters relevant to the public interest, such as safety. In other words, governments can’t overreach and make demands on property owners that go beyond the public interest. Nor may it demand a tribute not related to the proposed private development. The court calls this concept “rough proportionality.”

- Three, government must look at the public purposes the exaction (a requirement or demand) is meant to remedy. Then it must determine whether that is indeed a legitimate public interest. And it must determine that the proposed development somehow affects that public interest. The court calls this the “essential nexus.”

- Four, the Court said the burden of proof is now on the government to justify its proposed dedications on private property.

The Dolan case arose when a businessman asked to expand his hardware store in Oregon. The genius politicians in the City of Tigard saw this as an opening to grab a piece of the man’s property as tribute to their utopian urban gods called “bikepath” and “greenways.” In return for the permit to expand his business, the city wanted 10% of the man’s land for the socialist “public good.”

The fellow who only wanted to sell more screwdrivers and bird baths and WD-40 thought this extortion to be a shining example of a “taking” under the 5th amendment in the US Constitution. Who are you to demand that I give the government part of my property as a condition to use and develop my property, he asked.

Well, the city put him through the bureaucratic wringer in hopes of tiring him out. Every path he travelled down found another big bureaucratic “No!” in his way. With the bureaucratic path exhausted, he had now won the right to go through the state’s judicial wringer, where the genius judges told him to give away his property if he expected to sell more bird baths, etc., etc., in an expanded hardware store.

In Dolan, the good guy’s attorney argued that the city had “taken” the land through the permit process and was owed compensation.

Timothy Lynch of the Cato Institute explained that the court began its legal analysis by noting that if the city had simply seized the Dolan’s property for the purpose of building a bikepath, the 5th Amendment would have clearly required “just compensation” for the land taken.

Documents showed that the city had set up an extortion scheme to grab private property bit by bit for a bikepath and greenway by forcing specific property owners to give the city private property in exchange for zoning and permits. This was clearly a taking.

Courts have recognized the authority of state and local governments to “exact some forms of dedication as a condition for the grant of a building permit.”

For example, courts have recognized that local governments may exact a dedication so sidewalks can be built in a residential neighborhood as a condition for a building permit.

The question to be resolved in Dolan was whether the City of Tigard was using its permit power for legitimate land use planning or whether it was engaged in an “out and out plan of extortion,” wrote Lynch.

Everyone agrees that land planning by misinformed or power-mad bureaucrats can be easily abused. The question came down to “how serious was that abuse?”

The court set in place the following rule: Municipalities must demonstrate a reasonable relationship or “rough proportionality” between the projected impact of the proposed development and the required dedication."

This “rough proportionality” standard requires cities to make “an individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.”

In the end, the court upheld the right of a private property owner to refuse to submit to a government bureaucracy’s unjustified exaction of an environmental tribute beyond its permitting authority, the donation of a greenway and trail, in order to obtain a permit.

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