Do you actually own your real property? Your home? The apartment complex or commercial building you bought as an investment? Your ranch or farm? If you think you do, consider the following limitations on your ownership:
Using the power of eminent domain, the government can take your property for some “public use,” such as a highway, school, post office or a railroad. They are required to pay “just compensation” for it, but the list of property owners who believe they did not receive full value for their property is very long indeed.
In addition, a 2005 Supreme Court decision, Kelo v. City of New London, expanded the government’s right of eminent domain to allow private property to be taken for the benefit of another private party, such as a developer, by expanding the definition of “public use” to include generating higher taxes.
Commenting on this decision in the Jewish World Review, columnist Jeff Jacoby noted, “If state and local governments can force a property owner to surrender his land so it can be given to a new owner who will put it to more lucrative use, no home or shop in America will ever be safe again.” In most states, this decision makes property owners vulnerable to the whim of the government at any time. (Note: Some states have laws that strictly limit eminent domain to “public use.”)
Even if your property is paid for, you still have to pay a form of rent – forever (in the guise of property taxes) – to keep it. If you do not pay, the state will eventually take it from you and sell it at public auction.
Limitations on the use of your land can be forced on you for public benefit by requiring an easement, which is the right to use or cross your land, for such purposes as riding trails, access to the beach, power lines, view corridors, roads and highways, maintenance of public areas. Over the years, in what amounts to a form of legal extortion, the California Coastal Commission has forced many property owners to provide access across their land to public beaches in order to obtain approval to build or improve their homes. In addition, a wide spectrum of laws and local ordinances tell you what you can build, how to build it and what it must look like, how much you can charge tenants (rent control), what you can plant (landscape plans), removal of trees and a host of other restrictions too numerous to include here.In a hotly disputed effort to further regulate farming in Santa Barbara County, the Planning and Development Department attempted to impose a requirement that would have made it necessary to obtain permits for certain routine farming activities, such as plowing.
Perhaps the most egregious restriction on property ownership is the approval process that owners must negotiate in order to develop or improve their property. A glaring example of this was the ongoing travail of Ty Warner (of Beanie Baby fame), when he wanted to restore and improve the historic Coral Casino in Santa Barbara. For over five years, he was forced to suffer through more than 100 hearings, and even after the Planning Commission, the Board of Supervisors and the Coastal Commission all finally gave him the nod, he had to endure continuing harassment by a relentless succession of appeals and court actions initiated by a few people, who insisted that their ideas about restoring property they do not own should prevail over the owner’s.
Even if the use of your land was legal and conformed to the zoning laws at the time you began using it, if the zoning is subsequently changed and your current use is “nonconforming,” the government could decide that they want to force you out of business. An example of such abuse was the so-called Amortization Ordinance that was considered by Santa Barbara County in its quest to shut down the Venoco offshore oil platform in 2001.
So, where does all this leave property owners? Unfortunately, vulnerable to abuse.
In Santa Barbara Country, they have frequently been treated harshly by an unfeeling land use bureaucracy. A notable example was the struggle some years ago of a property owner on Santa Claus Lane who had to spend endless hours, energy and money just to obtain permission to remove an outdated Santa Claus sign from the top of his building. A sign, by the way, that caused the roof to leak badly and was damaging the structure. Why was that necessary when the answer was obvious? It took more than a year to get an approval that should have taken no more than 30 days.
The answer to the question, “Who owns your property?” is – you don’t! Not really. You may have title, but your control is limited and is being further eroded as time marches on.
© 2010 Harris R. Sherline, All Rights Reserved Read more of Harris Sherline’s commentaries on his blog at opinionfest.com