News
Service September 26, 2002
A
pickup truck driving along Highway 49 near the Nevada County border last week
sported numerous American flags and a bumper sticker declaring: "I love
my country, it's the government I'm afraid of."
This sentiment has many adherents in the foothills and mountains of rural
Nevada County, a local hotbed of the nationwide property rights movement.
"I think government is best that governs least," said retired U.S.
Air Force Col. Ben Nowland, now a Nevada County real estate appraiser. Many of
his neighbors, Nowland said, "are a lot like me."
So when a new Board of Supervisors started telling people they couldn't build
next to streams, on steep slopes or in oak groves, it didn't sit well with
those who think such regulations amount to confiscating land without
compensation -- something forbidden by the U.S. Constitution.
"I'm descended from one of the guys who signed the Constitution; I spent
30 years as a fighter pilot defending the Constitution, so I don't like to see
it violated," Nowland said.
Nevada County long has been a fractious mix of farmers, retirees,
back-to-the-land types, artists and aging hippies. But the political situation
has grown more rancorous over the past several years. An open-space study
recently commissioned by the Board of Supervisors was opposed with such
vehemence by some factions that officials simply opted to drop it.
"I fluctuate between amazed, amused and appalled," said Supervisor
Peter Van Zant, one of those who supports greater habitat and environmental
protections.
Property rights advocates now are taking their battle to the voters. They
qualified an initiative for the November ballot, Measure D, that would require
the county to establish a process through which landowners could go to court
and ask for compensation if a county regulation restricted use of their
property.
The measure applies only to the unincorporated area, not incorporated entities
such as Grass Valley, Nevada City and Truckee.
"What we're saying is that if people can come along and zone us out of
the use of our property, then someone should pay for it," said Norm
Sayler, owner of Donner Ski Ranch near Lake Tahoe.
"The green people, the tree people; everybody is trying to put demands on
your property," Sayler complained.
County officials contend that the financial effect of Measure D could be
devastating. They cite a county-commissioned study that found the initiative
could cost the general fund $10 million a year in claims and litigation costs
stemming from routine zoning and mitigation requirements.
"If we exercise our normal community development procedures, the estimate
is $10 million," Van Zant said. "Our general fund is only $25
million a year."
Supporters scoff at this claim.
"I'm really surprised that it seems to cause so much concern," said
Gregg Lien, a Nevada County lawyer who helped draft the measure.
"It is certainly not intended to cost the county millions of dollars. It
is intended to encourage good planning and careful consideration of the
impacts on the property owner."
Measure D is so broadly worded that it's hard to say what exactly it would do,
said Terry Rivasplata, director of the Sacramento Valley section of the
American Planning Association.
"The only thing we can be positive it would do is put the county in court
(over its meaning and validity)," Rivasplata said. A similar initiative
passed by Oregon voters in 2000 still is tied up in court challenges.
The legal question at the heart of the property rights debate is just what the
U.S. Constitution means when it says "private property shall not be taken
for public use without just compensation."
Historically, the clause has been applied mainly to the actual confiscation of
property -- say, for building a road.
Property rights groups argue it also should cover government actions that
reduce the value of land.
Nationwide, the property rights movement has met with mixed success. About two
dozen states have passed property rights laws, but they have not been
aggressively enforced, said Harvey Jacobs, a professor of urban and regional
planning at the University of Wisconsin-Madison.
The movement was dealt a significant legal defeat earlier this year, when the
U.S. Supreme Court ruled that a temporary building moratorium along Lake Tahoe
didn't amount to a taking of private land.
Property rights groups nonetheless have proliferated in Nevada County, with
names like the California Association of Business, Resource and Property
Owners and Citizens for Fair and Balanced Land Use.
Lien, who also worked as an attorney on the Tahoe case, said he thinks Measure
D could survive a legal challenge. While the Supreme Court found that a
temporary moratorium didn't constitute a "taking" of private land,
he said, it did not address the issue of more permanent government actions,
such as requiring that a landowner set aside property for open space.
"There is nothing in that case that should be interpreted as making this
initiative questionable," he said.
The roots of Measure D go back to the early 1990s, when the makeup of the
Nevada County Board of Supervisors began to change.
The county's population has swelled over the past two decades as new
residents, particularly retirees, streamed in from more crowded areas such as
the Bay Area and Los Angeles.
The Internet also allowed high-tech professionals to leave the cities and
telecommute from Nevada County's oak-studded foothills.
The newcomers include both Democrats and Republicans. But many of them,
determined not to let Nevada County become like the places they had left,
began backing slow-growth candidates. Some, like Supervisor Van Zant, decided
to run for office themselves.
Republicans still form the largest group of registered voters in Nevada
County. But by the late 1990s, the Board of Supervisors was much more liberal
than the pro-business politicians who previously had governed the county.
The 1999 election "gave the board a four-to-one progressive majority,
which was shocking to the people who had had their way for decades," said
Van Zant, a Democrat who took office in 1996.
Van Zant, 63, a technology consultant, moved to Nevada County from San Jose in
1989.
"We moved here for the reasons everyone else did," Van Zant said.
"It's drop-dead gorgeous. There's a high level of culture in Nevada
County. A lot of artists, a lot of writers.
"There's a very high quality of life."
Those who support Measure D, many of whom are transplants themselves, say they
don't want to ruin the rural ambience either. But they say Nevada County has a
shortage of affordable housing that could be partly addressed if property
owners could build out to existing zoning regulations, instead of being forced
to set aside portions for habitat and tree protection.
Even before the current Board of Supervisors took office, property rights
advocates were unhappy with a general plan adopted by the previous board in
1995 after years of rancorous debate. The plan discourages building in oak
groves, near streams or on steep slopes.
The new board began aggressively enforcing the rules, incensing those who had
opposed the regulations. They were even more angry when the new board embarked
on an open-space effort, called Natural Heritage 2020, that sought to identify
sensitive environmental habitat in the county and find ways to preserve it.
The reaction was swift. On Highway 49 just outside Grass Valley, a sign
declares "Stop NH 2020." Over that, newly added lime green words
announce "It's alive."
The Board of Supervisors officially shelved NH 2020 earlier this year, but
property rights advocates think it will be resurrected if two supervisors
being challenged by property-rights oriented candidates in November survive.
"We all know it's not dead," said Margaret Urke, an Orange County
transplant who serves as executive director of the California Association of
Business, Property and Resource Owners.
Sayler, the Donner Ski Ranch owner, said the county is getting a reputation as
anti-development.
He said he had reached a deal to sell his 455-acre property to an investor
group for $9 million, but the group backed away when it learned how difficult
it would be to get its development plans through Nevada County.
"After they talked to the county a month, and had it in escrow, they said
Nevada County isn't worth fiddling with," said Sayler, who at age 69 was
looking to retire.
Sayler said he doesn't understand the newcomers and all their talk about
quality of life. Real rural people, he said, don't expect government to
provide amenities like open space and hiking trails free of charge.
When he moved to the mountains in 1955, Sayler said, "I saw a bunch of
old timers who were hard workers, hard drinkers, hard players ... who showed
up for work every day come hell or high water. I aspired to that."
"We're killing what was truly rural America by people moving out of the
cities," he continued. "Most people are getting to the point where
they say: 'Make me another hiking trail, or make me another biking trail, and
can you build me a toilet? Or can I use yours?'