A recent news item has brought to mind why California is in the sorry economic condition in which it finds itself. First, check out www.inversecondemnation.com – the blog of Robert Thomas who faithfully keeps his readers informed on the latest to emerge from the courts on the subjects of takings and land use. Today’s lesson (July 8, 2011) comes from a California Court of Appeal decision rejecting a familiar NIMBY plaint opposing on supposed environmental grounds a proposed housing development of some 500 homes on land that ostensibly allows 1000 of them. Those numbers, however, were not the problem. In California, when zoning allows a given number of homes, that is not deemed legislation, but merely a suggestion that the local regulators may or may not choose to follow. In this case, the court rejected the NIMBYs’ attack on the development, launched on a variety of grounds, but in the process revealed just how stark raving crazy California land use law can get. Rather than going through the whole megilla ourselves and thus duplicating Mr. Thomas’ good work, we quote his concluding observation, which speaks for itself and hits the bull’s eye.
“While it’s good to see a court recognize that enough is enough, it’s fascinating also to see what the court considers to be an example of where environmental review “worked.” Residential zoning approved 30 years ago. An application for development made 20 years ago. Sixteen years of environmental review. Cutting the number of homes 50%. A five-fold increase in open space on the land (read: no homes there). In-lieu payments in the “millions of dollars.” Protection of cultural resources. And even after [that extended] environmental review (indeed, based on it), a challenge that the EIR didn’t get it just so.”
The case is Clover Valley Foundation v. City of Rocklin, Cal. Ct. App. docket No. C061808, filed July 8, 2011.
What is scary about this case is not the horrific saga of government delay and obfuscation that by our lights could not have been in good faith, and that necessarily translates into the unconscionable cost of California housing, but that the court allowed as how this was a case of the state environmental laws “working.” Yes indeed, that’s what the court said. We’d hate to see what their California Lordships would consider a situation in which environmental laws weren’t “working.”