San Clemente Puts Property Rights To A Vote
Should A Majority Vote Decide the Rights of Property Owners?
The Shorecliffs development in San Clemente is in the middle of a dispute over the right of property owners to build a second story for homes in the community, most of which have beach views. The original development contained only single story homes, but the developer did not impose any restrictions on building a second story. Until a recent urgency ordinance adopted by the City, which put a 45 day moratorium to any new projects, there were no zoning limitations on building two story homes. The City Council now plans to have an "advisory" vote of the community to help the Council decide whether to make the moratorium permanent.
In recent years, several homeowners have built second stories. Many residents bought their homes with the expectation that they could build a second story and the price they paid for their home reflected that right. However, complaints by neighbors who feared lost views and lost privacy, spurred the City Council to action. The Council now proposes to put the issue to a vote. Thus, a property owner's right to develop his property, consistent with decades of pre-existing zoning, is apparently to be decided by the majority opinion of neighbors, many of whom may have their own conflicting financial interest.
The neighbors calling for a ban on second stories surely have a valid concern and interest. Yet, that interest should not be allowed to be exercised in a way that violates established property rights. They purchased homes that had no restrictions on second stories. The constitutional protection for property rights was prompted by the concern that political majorities or powerful factions could exercise political power to take property rights from individuals with less political power. Madison observed in the The Federalist Papers No. 10 that the purpose of the Constitution was to "secure the public good and private rights against the danger of such a faction." Property rights are guaranteed by the Constitution. They should not be confiscated based on a popular vote.
Update: The city conducted their gerrymandered advisory vote and not surprisingly the 3 supporting councilmembers got the desired results. How did they gerrymander the vote, by hand selecting 265 homes (known as the pink lots) that would be subject to view protection/height restriction out of a total of 504 homes in the community. Ask yourself what a yes or no vote means for each voting property and you will see the problem with the vote. The City then passed an ordinance called the "View Protection and Height Restriction Ordinance". This ordinance is the first administrative view protection ordinance in California and is directly in conflict to the regulatory taking protections contained in Proposition 90.
In response to the ordinance, a group of homeowners fighting to retain property rights, conducted and submitted a referendum to the City of San Clemente requiring a public vote on the issue. Nearly 6000 signatures were collected over 30 days supporting the referendum, approximately 3700 valid signatures were required for the referendum to be ceritified. We obviously believe there are enough valid registered San Clemente voter signatures to support the certification of the referendum.
This referendum has been endorsed by the Orange County and State of California Republican Party organizations. The Orange County Register has publicly stated their opposition to this ordinance as well, as has Steve Greenhut, columnist for the Orange County Register.
Near the completion of the certification process (just last week), a group of homeowners who have fought to have this veiw protection ordinance at the expense of other homeowners property rights, sued the City of San Clemente, the City Council, the City Clerk, the Orange County Registrar of Voters, and our group of homeowners (as individuals and as a group) seeking to receive a temporary restraining order against the certification of the referendum, against the referendum itself, and ultimately a permanent injunction against the referendum.
We obviously will be opposing this attempt impose a regulatory taking of our property rights and the attempt to interfere with the will of the voting public and the democratic process.