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Washington, DC 20036
Phone: 202-296-6889
Fax: 202-296-6895

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CONTACT: Doug Kendall or Tim Dowling, 202-296-6889

Community Rights Counsel (CRC) filed a detailed legal analysis with the California Supreme Court this week defending the right of local communities to protect their residents from death or injury from raging fires and other natural disasters.

The case -- County of Riverside v. Superior Court for the County of Riverside --involves a 165-tract residential subdivision in the County of Riverside, California. Both state and county authorities have designated the location as a severely hazardous fire area. In accordance with county and state law, as well as the recommendations of the county fire department and state Department of Forestry and Fire Protection, the county issued a permit for the development that requires the developer to provide for a secondary access road. The road would ensure that subdivision residents have an alternate escape route if a fire or other natural disaster cuts off the existing avenue of flight from the area. The access requirement also would enhance accessibility for fire trucks, ambulances, and other emergency vehicles.

The lower courts struck down this safety access requirement under the Takings Clause of the Fifth Amendment. Applying a 1994 U.S. Supreme Court case called Dolan v. City of Tigard, they ruled that the county failed to show that the access requirement is "roughly proportional" to the risks posed by the development. The lower court not only invalidated the access requirement, but also allowed the subdivision to go forward without it. As a result, the ruling prevents the County from considering whether the homes should be built at all in the absence of adequate secondary access.

CRC's submission to the California Supreme Court shows that the safety access requirement is both reasonable and lawful. The county's interest in protecting the public from fires or other natural disasters is one of the most compelling governmental interests imaginable. Contrary to the lower court ruling, neither Dolan nor the Takings Clause requires the county to show how many lives might be saved by the secondary access road, or to weigh the risk of injury or death against the cost of providing for the road. Moreover, the lower courts exceeded their authority under the Takings Clause by usurping local land use planning authority and precluding the county from denying the development permit altogether.

To read The "Right" to Build in Harm's Way
by Doug Kendall, published in The Press-Enterprise (Riverside, CA), click here.

To read about other cases where CRC is defending community protections, click here.

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