A real estate developer applied for a building permit from a local government agency to develop a parcel of land. The agency conditioned issuing the permit on the developer’s conveyance of a conservation easement on a portion of his land, arranging the conveyance of an easement on another’s land or making a payment to a land trust to protect surrounding farmland from residential development. The developer made a demand on the agency to issue the permit without requiring the conservation easement. The agency refused. The developer sought to obtain the permits without a conservation easement, claiming the agency was barred from conditioning the issuance of building permits on the conveyance of a conservation easement since a government agency may not condition the issuance of building permits on the involuntary conveyance of a conservation easement. A California court of appeals held a government agency may require a developer to arrange the conveyance of a conservation easement on his property as a condition of issuing a building permit since government agencies may condition the issuance of building permits on the conveyance of a conservation easement. [Building Industry Association of Central California v. County of Stanislaus (2010) 190 CA4th 582]
Editor’s note — This is a case of first impression. The facts of this case reveal a contradiction in the current public policy on housing development and land use in California. The local agency in this case successfully fought to restrict the use of open land for the development of suburban residences. Concurrently, local agencies successfully limit urban development by placing socially-outdated and regressive height restrictions on multi-family housing units in town-center urban areas.
Given California’s need to house its expanding cosmopolitan population, along with the current exodus of both the Baby Boomers and Gen-Y from suburban neighborhoods into urban city-centers, California’s housing policy requires a serious reevaluation. The expansive plateau period of this recovery has given brokers and builders the time to start this important conversation.
If land use is to be restricted from suburban development (as it should since there is no desire for an expansion of the suburbs) local government agencies imposing irrational height limitations on multi-family housing projects must relent and provide for the housing needs of our more mobile generations. [For more information on changing conceptions of homeownership, see the October 2010 first tuesday article, The demographics forging California’s real estate market: a study of forthcoming trends and opportunities — Part I and Part II.]